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Durga Shankar Mehta Vs. Thakur Raghuraj Singh And Others | face of the nomination paper or of the electoral roll, but is a matter which could be established only by evidence, an enquiry at the stage of scrutiny of the nomination papers is required under the Act only if there is any objection to the nomination. The Returning Officer is then bound to make such enquiry as he thinks proper on the result of which he can either accept or reject the nomination. But when the candidate appears to be properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination, the Returning Officer has no other alternative but to accept the nomination. This would be apparent from section 36 sub-section (7) of the Act which runs as follows:"7. For the purposes of this section -(a) the production of any certified copy of an entry made in the electoral roll of any constituency shall be conclusive evidence of the right of any electoral named in that entry to stand for election or to subscribe a nomination paper, as the case may be, unless it is proved that the candidate is disqualified under the Constitution or this Act, or that the proposer or seconder, as the case of may be, is disqualified under sub-section (2) of section 33".In other words, the electoral roll is conclusive as to the qualification of the electoral except whether a disqualification is expressly alleged or proved. The electoral roll in the case of Vasant Rao did describe him as having been of proper age and on the face of it therefore he was fully qualified to be chosen a member of the State Legislative Assembly. As no objection was taken to his nomination before the Returning Officer at the time of scrutiny, the latter was bound to take the entry in the electoral roll as conclusive; and if in these circumstances he did not reject the nomination of Vasant Rao, it cannot be said that this was an improper acceptance of nomination in his part which section 100 (1) (c) of the Act contemplates.It would have been an improper acceptance, if the want of qualification was apparent on the electoral roll itself or on the face of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the material placed before him. When neither of these things happened, the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance. It is certainly not final and the Election Tribunal may, on evidence place before it, come to a finding that the candidate was not qualified at all. But the election should be held to be void on the ground of the Constitutional disqualification of the candidate and not on the ground that his nomination was properly accepted by the Returning Officer. In our opinion Mr. Sen is right that a case of this description comes under sub-section (2) (c) of section 100 and not under sub-section (1) (c) of the section as it really amounts to holding an election without complying with the provisions of the Constitution, and that in one of the grounds specified in clause (c) of sub-section (2). There expression "non-compliance with the provisions of the Constitution" is in our opinion sufficiently wide to cover such cases where the question is not one of improper acceptance or rejection of the nomination by the Returning Officer, but there is a fundamental disability in the candidate to stand for election at all. The English law after the passing of the Ballot Act of 1872 is substantially the same as has been explained in the case of --- Stowe v. Jolliffe (1874) 9 C. P. 734 (d). The register which corresponds to our electoral roll is regarded as conclusive except in cases where persons are prohibited from voting by any statute or by the common law of Parliament.9. It is argued on behalf of the respondent that the expression "non-compliance" as used in sub-section (2) (c) would suggest the idea of not acting according to any rule or command and that the expression is not quite appropriate in describing a mere lack of qualification. This, we think, would be a narrow way of looking at the thing. When a person is incapable of being chosen as a member of a State Assembly under the provisions of the Constitution itself but has nevertheless been returned as such at an election, it can be said without impropriety that there has been non-compliance with the provisions of the Constitution materially affecting the result of the election. There is no material difference between "non-compliance" and "non-observance or "breach" and this item in clause (c) of sub-section (2) may be taken as a residency provision contemplating cases where there has been infraction of the provisions of the Constitution or of the Act but which have not been specifically enumerated in the other portions of the clause. When a person is not qualified to be elected a member, there can be no doubt that the Election Tribunal has got to declare his election to be void. Under section 98 of the Act this is one of the orders which the Election Tribunal is competent to make. If it is said that section 100 of the Act enumerates exhaustively the grounds on which an election could be held void either as a whole or with regard to the returned candidate we think that it would be a correct view to take that in the case of a candidate who is constitutionally incapable of being returned as a member there is non-compliance with the provisions of the Constitution in the holding of the election and as such sub-s. (2) (c) of section 100 of the Act applies. The result therefore is that in our opinion the contention of the appellant succeeds. | 1[ds]4. These arguments, though apparently attractive, appear to us on closer examination to be untenable. We agree with the learned counsel that the right of seeking election and sitting in Parliament or in a State Legislature is a creature of the Constitution and when the Constitution provides a special remedy for enforcing that right, no other remedy by ordinary action in a court of law is available to a person in regard to election disputes. The jurisdiction with which the Election Tribunal is endowed is undoubtedly a special jurisdiction; but once it is held that it is a judicial Tribunal empowered and obliged to deal judicially with disputes arising out of or in connection with election, the overriding power of this court to grant special leave, in proper cases, would certainly be attracted and this power cannot be excluded by any Parliamentaryis the Election Tribunal alone that can decide such disputes, and the proceeding has to be initiated by an election petition and in such manner as may be provided by a statute. But once that Tribunal has made any determination of adjudication on the matter, the powers of this court to interfere by way of special leave can always be exercised.It iswell known that an appeal is a creature of statute and there can be no inherent right of appeal from any judgment or determination unless an appeal is expressly provided for by the law itself. The powers given by Article 136 of the Constitution however are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in case whether the needs of justice demand interference by the Supreme Court of the land. The Article itself is worded in the widest terms possible. It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals, by granting of special leave, against any kind of judgment or order made by a court or tribunal in any cause or matter and the powers could be exercised in spite of the specific provisions or for appeal contained in the Constitution or other laws. The Constitution for the best of reasons did not choose to fetter or circumscribe the powers exercisable under this Article in any way.Section 105 of the Representation of the People Act certainly gives finality to the decision of the Election Tribunal so far as that Act is concerned and does not provide for any further appeal but that cannot in any way cut down or affect the overriding powers which this court can exercise in the matter of granting special leave under Article 136 of the Constitution.5. This overriding powers, which has been vested in the Supreme Court under Article 136 of the Constitution, is in a sense wider than the prerogative right of entertaining an appeal exercised by the Judicial Committee of the Privy Council in England. The prerogative of the Crown can be taken away or curtailed by express legislation and even when there are no clear words in a particular statute expressly taking away the Crowns prerogative of entertaining an appeal but the scheme and purpose of the Act show unmistakably that there was never any intention of creating a Tribunal with the ordinary incident of an appeal to the Crown annexed to it, the Privy Council would non admit an appeal from the decision of suchthe first place Article 136 is a constitutional provision which no Parliamentary legislation can limit or take away. In the second place the provision being one, which overrides ordinary laws, no presumption can arise from words and expressions declaring and adjudication of a particular Tribunal to be final and conclusive, that there was an intention to exclude the exercise of the specialthe want of qualification of a candidate does not appear on the face of the nomination paper or of the electoral roll, but is a matter which could be established only by evidence, an enquiry at the stage of scrutiny of the nomination papers is required under the Act only if there is any objection to the nomination. The Returning Officer is then bound to make such enquiry as he thinks proper on the result of which he can either accept or reject the nomination. But when the candidate appears to be properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination, the Returning Officer has no other alternative but to accept thewould have been an improper acceptance, if the want of qualification was apparent on the electoral roll itself or on the face of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the material placed before him. When neither of these things happened, the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance. It is certainly not final and the Election Tribunal may, on evidence place before it, come to a finding that the candidate was not qualified at all. But the election should be held to be void on the ground of the Constitutional disqualification of the candidate and not on the ground that his nomination was properly accepted by the Returning Officer. In our opinion Mr. Sen is right that a case of this description comes under sub-section (2) (c) of section 100 and not under sub-section (1) (c) of the section as it really amounts to holding an election without complying with the provisions of the Constitution, and that in one of the grounds specified in clause (c) of sub-section (2). There expression "non-compliance with the provisions of the Constitution" is in our opinion sufficiently wide to cover such cases where the question is not one of improper acceptance or rejection of the nomination by the Returning Officer, but there is a fundamental disability in the candidate to stand for election at all. The English law after the passing of the Ballot Act of 1872 is substantially the same as has been explained in the case of --- Stowev. Jolliffe (1874) 9 C. P. 734The register which corresponds to our electoral roll is regarded as conclusive except in cases where persons are prohibited from voting by any statute or by the common law ofis no material difference between "non-compliance" and "non-observance or "breach" and this item in clause (c) of sub-section (2) may be taken as a residency provision contemplating cases where there has been infraction of the provisions of the Constitution or of the Act but which have not been specifically enumerated in the other portions of the clause. When a person is not qualified to be elected a member, there can be no doubt that the Election Tribunal has got to declare his election to be void. Under section 98 of the Act this is one of the orders which the Election Tribunal is competent to make. If it is said that section 100 of the Act enumerates exhaustively the grounds on which an election could be held void either as a whole or with regard to the returned candidate we think that it would be a correct view to take that in the case of a candidate who is constitutionally incapable of being returned as a member there is non-compliance with the provisions of the Constitution in the holding of the election and as such sub-s. (2) (c) of section 100 of the Act applies | 1 | 4,360 | 1,350 | ### Instruction:
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face of the nomination paper or of the electoral roll, but is a matter which could be established only by evidence, an enquiry at the stage of scrutiny of the nomination papers is required under the Act only if there is any objection to the nomination. The Returning Officer is then bound to make such enquiry as he thinks proper on the result of which he can either accept or reject the nomination. But when the candidate appears to be properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination, the Returning Officer has no other alternative but to accept the nomination. This would be apparent from section 36 sub-section (7) of the Act which runs as follows:"7. For the purposes of this section -(a) the production of any certified copy of an entry made in the electoral roll of any constituency shall be conclusive evidence of the right of any electoral named in that entry to stand for election or to subscribe a nomination paper, as the case may be, unless it is proved that the candidate is disqualified under the Constitution or this Act, or that the proposer or seconder, as the case of may be, is disqualified under sub-section (2) of section 33".In other words, the electoral roll is conclusive as to the qualification of the electoral except whether a disqualification is expressly alleged or proved. The electoral roll in the case of Vasant Rao did describe him as having been of proper age and on the face of it therefore he was fully qualified to be chosen a member of the State Legislative Assembly. As no objection was taken to his nomination before the Returning Officer at the time of scrutiny, the latter was bound to take the entry in the electoral roll as conclusive; and if in these circumstances he did not reject the nomination of Vasant Rao, it cannot be said that this was an improper acceptance of nomination in his part which section 100 (1) (c) of the Act contemplates.It would have been an improper acceptance, if the want of qualification was apparent on the electoral roll itself or on the face of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the material placed before him. When neither of these things happened, the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance. It is certainly not final and the Election Tribunal may, on evidence place before it, come to a finding that the candidate was not qualified at all. But the election should be held to be void on the ground of the Constitutional disqualification of the candidate and not on the ground that his nomination was properly accepted by the Returning Officer. In our opinion Mr. Sen is right that a case of this description comes under sub-section (2) (c) of section 100 and not under sub-section (1) (c) of the section as it really amounts to holding an election without complying with the provisions of the Constitution, and that in one of the grounds specified in clause (c) of sub-section (2). There expression "non-compliance with the provisions of the Constitution" is in our opinion sufficiently wide to cover such cases where the question is not one of improper acceptance or rejection of the nomination by the Returning Officer, but there is a fundamental disability in the candidate to stand for election at all. The English law after the passing of the Ballot Act of 1872 is substantially the same as has been explained in the case of --- Stowe v. Jolliffe (1874) 9 C. P. 734 (d). The register which corresponds to our electoral roll is regarded as conclusive except in cases where persons are prohibited from voting by any statute or by the common law of Parliament.9. It is argued on behalf of the respondent that the expression "non-compliance" as used in sub-section (2) (c) would suggest the idea of not acting according to any rule or command and that the expression is not quite appropriate in describing a mere lack of qualification. This, we think, would be a narrow way of looking at the thing. When a person is incapable of being chosen as a member of a State Assembly under the provisions of the Constitution itself but has nevertheless been returned as such at an election, it can be said without impropriety that there has been non-compliance with the provisions of the Constitution materially affecting the result of the election. There is no material difference between "non-compliance" and "non-observance or "breach" and this item in clause (c) of sub-section (2) may be taken as a residency provision contemplating cases where there has been infraction of the provisions of the Constitution or of the Act but which have not been specifically enumerated in the other portions of the clause. When a person is not qualified to be elected a member, there can be no doubt that the Election Tribunal has got to declare his election to be void. Under section 98 of the Act this is one of the orders which the Election Tribunal is competent to make. If it is said that section 100 of the Act enumerates exhaustively the grounds on which an election could be held void either as a whole or with regard to the returned candidate we think that it would be a correct view to take that in the case of a candidate who is constitutionally incapable of being returned as a member there is non-compliance with the provisions of the Constitution in the holding of the election and as such sub-s. (2) (c) of section 100 of the Act applies. The result therefore is that in our opinion the contention of the appellant succeeds.
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ordinary law, in case whether the needs of justice demand interference by the Supreme Court of the land. The Article itself is worded in the widest terms possible. It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals, by granting of special leave, against any kind of judgment or order made by a court or tribunal in any cause or matter and the powers could be exercised in spite of the specific provisions or for appeal contained in the Constitution or other laws. The Constitution for the best of reasons did not choose to fetter or circumscribe the powers exercisable under this Article in any way.Section 105 of the Representation of the People Act certainly gives finality to the decision of the Election Tribunal so far as that Act is concerned and does not provide for any further appeal but that cannot in any way cut down or affect the overriding powers which this court can exercise in the matter of granting special leave under Article 136 of the Constitution.5. This overriding powers, which has been vested in the Supreme Court under Article 136 of the Constitution, is in a sense wider than the prerogative right of entertaining an appeal exercised by the Judicial Committee of the Privy Council in England. The prerogative of the Crown can be taken away or curtailed by express legislation and even when there are no clear words in a particular statute expressly taking away the Crowns prerogative of entertaining an appeal but the scheme and purpose of the Act show unmistakably that there was never any intention of creating a Tribunal with the ordinary incident of an appeal to the Crown annexed to it, the Privy Council would non admit an appeal from the decision of suchthe first place Article 136 is a constitutional provision which no Parliamentary legislation can limit or take away. In the second place the provision being one, which overrides ordinary laws, no presumption can arise from words and expressions declaring and adjudication of a particular Tribunal to be final and conclusive, that there was an intention to exclude the exercise of the specialthe want of qualification of a candidate does not appear on the face of the nomination paper or of the electoral roll, but is a matter which could be established only by evidence, an enquiry at the stage of scrutiny of the nomination papers is required under the Act only if there is any objection to the nomination. The Returning Officer is then bound to make such enquiry as he thinks proper on the result of which he can either accept or reject the nomination. But when the candidate appears to be properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination, the Returning Officer has no other alternative but to accept thewould have been an improper acceptance, if the want of qualification was apparent on the electoral roll itself or on the face of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the material placed before him. When neither of these things happened, the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance. It is certainly not final and the Election Tribunal may, on evidence place before it, come to a finding that the candidate was not qualified at all. But the election should be held to be void on the ground of the Constitutional disqualification of the candidate and not on the ground that his nomination was properly accepted by the Returning Officer. In our opinion Mr. Sen is right that a case of this description comes under sub-section (2) (c) of section 100 and not under sub-section (1) (c) of the section as it really amounts to holding an election without complying with the provisions of the Constitution, and that in one of the grounds specified in clause (c) of sub-section (2). There expression "non-compliance with the provisions of the Constitution" is in our opinion sufficiently wide to cover such cases where the question is not one of improper acceptance or rejection of the nomination by the Returning Officer, but there is a fundamental disability in the candidate to stand for election at all. The English law after the passing of the Ballot Act of 1872 is substantially the same as has been explained in the case of --- Stowev. Jolliffe (1874) 9 C. P. 734The register which corresponds to our electoral roll is regarded as conclusive except in cases where persons are prohibited from voting by any statute or by the common law ofis no material difference between "non-compliance" and "non-observance or "breach" and this item in clause (c) of sub-section (2) may be taken as a residency provision contemplating cases where there has been infraction of the provisions of the Constitution or of the Act but which have not been specifically enumerated in the other portions of the clause. When a person is not qualified to be elected a member, there can be no doubt that the Election Tribunal has got to declare his election to be void. Under section 98 of the Act this is one of the orders which the Election Tribunal is competent to make. If it is said that section 100 of the Act enumerates exhaustively the grounds on which an election could be held void either as a whole or with regard to the returned candidate we think that it would be a correct view to take that in the case of a candidate who is constitutionally incapable of being returned as a member there is non-compliance with the provisions of the Constitution in the holding of the election and as such sub-s. (2) (c) of section 100 of the Act applies
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M/S Shreenath Motors Private Limited Vs. Commissioner of Income Tax-V, Mumbai | which would justify that conclusion it being for them to find the evidence and to give the finding then it will become an admissible deduction. The decision of such questions is for the Tribunal and the decision must be sustained if there is evidence upon which the Tribunal could have arrived at such a conclusion. Another fact that emerges from these cases is that if the expense is incurred for fostering the business of another only or was made by way of distribution of profits or was wholly gratuitous or for some improper or oblique purpose outside the course of business then the expense is not deductible. In deciding whether a payment of money is a deductible expenditure one has to take into consideration questions of commercial expediency and the principles of ordinary commercial trading.(emphasis supplied).16. Similarly, in the case of S.A. Builders Ltd. (supra), the Supreme Court has held as under:-31. We agree with the view taken by the Delhi High Court in CIT vs. Dalmia Cement (Bharat) Ltd. (2002) 174 CTR (Del) 188 : (2002) 254 ITR 377 (Del) that once it is established that there was nexus between the expenditure and the purpose of the business (which need not necessarily be the business of the assessee itself), the Revenue cannot justifiably claim to put itself in the armchair of the businessman or in the position of the board of directors and assume the role to decide how much is reasonable expenditure having regard to the circumstances of the case. No businessman can be compelled to maximize its profit. The IT authorities must put themselves in the shoes of the assessee and see how a prudent businessman would act. The authorities must not look at the matter from their own viewpoint but that of a prudent businessman. As already stated above, we have to see the transfer of the borrowed funds to a sister-concern from the point of view of commercial expediency ant not from the point of view whether the amount was advanced for earning profits.(emphasis supplied).16. What can be discerned from the aforesaid Supreme Court judgments is that (a) the amount which is claimed as a deductible allowance was wholly and exclusively for the purpose of the business of the Assessee; (b) there has to be a nexus between the expenditure incurred and the purpose of the business; and (c) these are all questions of fact that have to be determined by the authorities below. If the fact finding Tribunal comes to the conclusion on evidence, that would justify allowing the deduction, then it would become an admissible deduction. The decisions on such questions is for the Tribunal to decide and the decision must be sustained if there is evidence upon which the Tribunal could have arrived at such a conclusion. However, as reiterated by the Supreme Court, this would depend on the facts and circumstances of each case. In the present case, we find that the reliance placed on the aforesaid judgments is of no assistance to the Appellant-Assessee. In the facts of the present case, the authorities below have come to a categorical finding (i) that the expenditure incurred was not for the purpose of business of the Appellant-Assessee and was out of personal consideration and not out of any commercial consideration; (ii) that the Appellant-Assessee filed no evidence that it had framed any Rules or Regulations for incurring expenditure on the education of the son of the director or any other employee; (iii) that the Appellant-Assessee had not filed any details which would indicate that the said Mr Krishna Kachalia was under any obligation to serve the Appellant-Assessee after the completion of management studies; (iv) that the Appellant-Assessee had paid education expenses of Mr Krishna Kachalia only because he happens to be belonging to the family controlling the Appellant-Assessee; (v) that the expenditure incurred on the education of Mr Krishna Kachalia was not incurred for the purpose of business of the Appellant-Assessee and therefore could not be allowed as deduction in the hands of the Appellant. In view of these categorical findings of fact, we have no hesitation in holding that the deduction claimed by the Appellant-Assessee has been rightly disallowed by the authorities below and we find no infirmity in the impugned order passed by the ITAT.17. On the same parity of reasoning, we find that even the expenses claimed as a deduction by the Appellant-Assessee for the payment of salary to Mr Krishna Kachalia was rightly disallowed by the authorities below. In this regard, the authorities below have come to a finding that the said Mr Krishna Kachalia was doing a management course with S.P. Jain Institute of Management & Research from October 2003 to April 2005 and therefore it was not possible that he was working for the company in the capacity of a Director at the same time when in fact he was a student. The authorities below have come to a finding that during the time Mr Krishna Kachalia was shown to be in-charge of the marketing activities at the Appellant-Assessees Borivali Center, another Director of the Appellant-Assessee was also looking after the marketing activities at the very same place and was paid a remuneration of Rs.10,00,000/- per annum for the said work. The authorities below have also found that in no other Center of the Appellant- Assessee was more than one Director assigned and the fact that Mr Krishna Kachalia was assigned to look after the work at Borivali in addition to another Director, his appointment was only for name sake. Despite the fact that it was sought to be urged that Mr Krishna Kachalia was rendering marketing services to the Assessee Company in the year under consideration and that he was instrumental in acquiring the distributorship of VOLVO and thereafter dealing with such distributorship, no evidence was led by the Appellant-Assessee to support and substantiate the same. We therefore find that even on this count the authorities below were fully justified in disallowing the said deduction. | 0[ds]we have perused the Memo of Appeal and the Annexures thereto as well as the orders passed by the Assessing Officer, CIT(Appeals) and the ITAT. The Assessing officer, in his order dated 31st December, 2007 passed under section 143(3) of the Act found that Mr Krishna Kachalia, who was 26 years old, had completed his graduation in B.Com. in the year 2003 and had been inducted as a Director of the AppellantAssessee on 30th September 2003. After analysing the entire factual matrix, the Assessing Officer came to the conclusion that the said Krishna Kachalia was inducted as a Director at such an early age and immediately after the completion of his B.Com. course only to finance his higher education in Management through the funds of theon which a deduction could be claimed. The Assessing Officer was of the view that the only reason for obtaining such a young person to be a Director who had little or no business experience, was only to claim this deduction and that the payment of fees to S.P. Jain Institute of Management and Research for and on behalf of Mr Krishna Kachalia was out of personal consideration and not out of any commercial consideration. The Assessing Officer further fortified this finding by holding that similar expenditure had not been incurred by thein respect of any other employee not related to the Companys Directors. He therefore proceeded to disallow the Assessees claim of deduction on the aforesaid count. For identical reasons, the Assessing Officer further went on to disallow the deduction for payment of salary to the said Mr Krishna Kachalia. The Assessing Officer further noted that though Mr Krishna Kachalia was shown to beof the marketing activity at the Borivali Centre, another Director was also looking after the marketing activities at the very same place and was paid a salary of Rs.10,00,000/per annum for that work. In no other Centres (Andheri or Rajkot) there was more than one Director assigned and therefore the Assessing Officer came to the conclusion that the said Mr Krishna Kachalia was assigned to look after the work at Borivali only in name. Examining the order of the Assessing Officer we do not find that in the peculiar facts and circumstances of the present case the Assessing Officer had, in any way, misdirected himself in coming to the findings that he did. The view taken by the Assessing Officer is not only a possible view, but in our opinion a correct view, requiring no interference.10. Similarly, the CIT (Appeals) also in paragraph 5.3 of his order dated 9th July 2009 has reaffirmed the findings of the Assessing officer. The CIT(Appeals) came to a finding that it could not be said that the expenditure incurred on the education of Mr Krishna Kachalia who was a Director of thewas a legitimate expenditure incurred for the purpose of the business of theespecially in view of the fact that thehad not filed any evidence that it had framed any Rules and Regulations for incurring expenditure on education for the son of a Director or any other employee of theee further had not filed any details which showed that Mr Krishna Kachalia was under any obligation to serve theafter completion of his management studies. As far as the salary paid to him as a Director was concerned, the CIT (Appeals) held that Mr Krishna Kachalia was doing his management course with S.P. Jain Institute of ManagementResearch from October 2003 to April 2005 and therefore it was not possible that he was working in the capacity as a Director at the same time when in fact he was a student. In view of these facts, the CIT (Appeals) upheld the findings of the Assessing Officer.11. The impugned order of the ITAT also makes note of the entire factual matrix and affirms the orders passed by the Assessing Officer as well as the CIT (Appeals) in disallowing the aforesaid claims. The impugned order in fact records that although an attempt was made on behalf of theto make out a case that Mr Krishna Kachalia was instrumental in acquiring distributorship of VOLVO, no evidence whatsoever had been filed to support and substantiate the same. In fact, the ITAT came to a finding that sending Mr. Krishna Kachalia, who was a Commerce Graduate and had joined thejust a month back, for a management course in marketing at the cost of thewithout any exposure or experience, could not be justified on the touchstone of commercial expediency. The ITAT further held that thehad not been able to satisfactorily explain the services rendered by Mr Krishna Kachalia and whatever explanation that was sought to be given in this regard was also found to be not acceptable by the Assessing Officer by giving specific reasons. The ITAT holding that the issue in dispute being purely a factual one, the onus was on theto establish on evidence that the said expenditures were incurred wholly and exclusively for the purpose of its business. Thehaving failed to discharge this onus, the findings of the Assessing Officer and the CIT (Appeals) were confirmed.12. After carefully perusing the orders passed by the authorities below we have no hesitation in holding that the dispute in the present case is purely a factual one. We find that the facts and the evidence brought on record by thehave been analysed by all the authorities below and in its proper perspective. In this view of the matter and in the peculiar facts of the present case and noting the findings given by the ITAT which are based on the facts and circumstances of the case, we are not required to decide any larger question in these Appeals. We find that the dispute in the present case being purely of a factual nature, does not raise any substantial question of law and the orders passed by the authorities below can in no way be said to be vitiated on the ground of perversity or any error apparent on the face of the record.13. The relianceplaced by Mr. Tiwari on a Division Bench judgment of this Court in the case of Sakal Papers Pvt.Ltd. v/s Commissioner of Income Tax, reported in (1978) 114 ITR 256 (Bom) is wholly misplaced.the present case, the authorities have found that the expenditure incurred for the education of the Director of theviz. Mr Krishna Kachalia was out of personal consideration and not commercial consideration. The authorities below, being fact finding authorities, have come to the aforesaid conclusion after taking into consideration the totality of the facts and circumstances of the case. We find the said findings in consonance with the facts and circumstances of the present case. Furthermore, the judgment in Sakal Papers Pvt. Ltd. (supra) has been considered by another Division Bench of this Court in Income Tax Appeal No.840 of 2012 in the case of D.C. Mehta v/s The Income Tax Officer 11(2)(2) and anr., dated 11th March 2014. The reliance placed by Mr. Ahuja on the judgment in the case of D. C. Mehta (supra) is well founded. In the facts of that case, the Assessee, Mr. D. C. Mehta, was a Advocate by profession. In the return of income filed by the Assessee, the Assessing Officer noticed a deduction of Rs.22,25,614/claimed by the Assessee as expenditure incurred for higher education for his daughter, Hemali. The justification for the said deduction was that she joined the Appellants firm of Advocates and gave an undertaking that on attaining higher qualification and degree from the University abroad, she would join the firm for a minimum period of five years and thus, the said expenditure was incurred for the business of the Assessee and was allowableas a deduction. This Court had the occasion to consider the judgment in the case of Sakal Papers Pvt.Ltd. (supra) when it held that the facts were different and distinct from the facts in Sakal Papers Pvt.Ltd.sfind that the facts of the present case are totally different from that in the case of Sakal papers Pvt. Ltd. and almost identical to that in D. C. Mehtas case. In the case of D. C. Mehta (supra) this court did not interfere with the findings of the authorities below in disallowing the deduction to the Assessee. In this view of the matter, we find that the reliance placed by Mr. Tiwari on the judgment of this Court in the case of Sakal Papers Pvt.Ltd. (supra)5. Similarly, we also find that the reliance placed by Mr Tiwari on the judgments of the supreme Court in the case of Commissioner of Income Tax v/s Chandulal Keshavlal and Co., reported in (1960) 38 ITR 601 and in the case of S.A. Builders Ltd. v/s Commissioner of Income Tax (Appeals) and anr., reported in (2007) 288 ITR 1 are also of no assistance.In thepresent case, we find that the reliance placed on the aforesaid judgments is of no assistance to theIn the facts of the present case, the authorities below have come to a categorical finding (i) that the expenditure incurred was not for the purpose of business of theand was out of personal consideration and not out of any commercial consideration; (ii) that thefiled no evidence that it had framed any Rules or Regulations for incurring expenditure on the education of the son of the director or any other employee; (iii) that thehad not filed any details which would indicate that the said Mr Krishna Kachalia was under any obligation to serve theafter the completion of management studies; (iv) that thehad paid education expenses of Mr Krishna Kachalia only because he happens to be belonging to the family controlling the(v) that the expenditure incurred on the education of Mr Krishna Kachalia was not incurred for the purpose of business of theand therefore could not be allowed as deduction in the hands of the Appellant. In view of these categorical findings of fact, we have no hesitation in holding that the deduction claimed by thehas been rightly disallowed by the authorities below and we find no infirmity in the impugned order passed by the ITAT.17. On the same parity of reasoning, we find that even the expenses claimed as a deduction by thefor the payment of salary to Mr Krishna Kachalia was rightly disallowed by the authorities below. In this regard, the authorities below have come to a finding that the said Mr Krishna Kachalia was doing a management course with S.P. Jain Institute of ManagementResearch from October 2003 to April 2005 and therefore it was not possible that he was working for the company in the capacity of a Director at the same time when in fact he was a student. The authorities below have come to a finding that during the time Mr Krishna Kachalia was shown to beof the marketing activities at theBorivali Center, another Director of thewas also looking after the marketing activities at the very same place and was paid a remuneration of Rs.10,00,000/per annum for the said work. The authorities below have also found that in no other Center of the AppellantAssessee was more than one Director assigned and the fact that Mr Krishna Kachalia was assigned to look after the work at Borivali in addition to another Director, his appointment was only for name sake. Despite the fact that it was sought to be urged that Mr Krishna Kachalia was rendering marketing services to the Assessee Company in the year under consideration and that he was instrumental in acquiring the distributorship of VOLVO and thereafter dealing with such distributorship, no evidence was led by theto support and substantiate the same. We therefore find that even on this count the authorities below were fully justified in disallowing the said deduction. | 0 | 4,546 | 2,117 | ### Instruction:
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which would justify that conclusion it being for them to find the evidence and to give the finding then it will become an admissible deduction. The decision of such questions is for the Tribunal and the decision must be sustained if there is evidence upon which the Tribunal could have arrived at such a conclusion. Another fact that emerges from these cases is that if the expense is incurred for fostering the business of another only or was made by way of distribution of profits or was wholly gratuitous or for some improper or oblique purpose outside the course of business then the expense is not deductible. In deciding whether a payment of money is a deductible expenditure one has to take into consideration questions of commercial expediency and the principles of ordinary commercial trading.(emphasis supplied).16. Similarly, in the case of S.A. Builders Ltd. (supra), the Supreme Court has held as under:-31. We agree with the view taken by the Delhi High Court in CIT vs. Dalmia Cement (Bharat) Ltd. (2002) 174 CTR (Del) 188 : (2002) 254 ITR 377 (Del) that once it is established that there was nexus between the expenditure and the purpose of the business (which need not necessarily be the business of the assessee itself), the Revenue cannot justifiably claim to put itself in the armchair of the businessman or in the position of the board of directors and assume the role to decide how much is reasonable expenditure having regard to the circumstances of the case. No businessman can be compelled to maximize its profit. The IT authorities must put themselves in the shoes of the assessee and see how a prudent businessman would act. The authorities must not look at the matter from their own viewpoint but that of a prudent businessman. As already stated above, we have to see the transfer of the borrowed funds to a sister-concern from the point of view of commercial expediency ant not from the point of view whether the amount was advanced for earning profits.(emphasis supplied).16. What can be discerned from the aforesaid Supreme Court judgments is that (a) the amount which is claimed as a deductible allowance was wholly and exclusively for the purpose of the business of the Assessee; (b) there has to be a nexus between the expenditure incurred and the purpose of the business; and (c) these are all questions of fact that have to be determined by the authorities below. If the fact finding Tribunal comes to the conclusion on evidence, that would justify allowing the deduction, then it would become an admissible deduction. The decisions on such questions is for the Tribunal to decide and the decision must be sustained if there is evidence upon which the Tribunal could have arrived at such a conclusion. However, as reiterated by the Supreme Court, this would depend on the facts and circumstances of each case. In the present case, we find that the reliance placed on the aforesaid judgments is of no assistance to the Appellant-Assessee. In the facts of the present case, the authorities below have come to a categorical finding (i) that the expenditure incurred was not for the purpose of business of the Appellant-Assessee and was out of personal consideration and not out of any commercial consideration; (ii) that the Appellant-Assessee filed no evidence that it had framed any Rules or Regulations for incurring expenditure on the education of the son of the director or any other employee; (iii) that the Appellant-Assessee had not filed any details which would indicate that the said Mr Krishna Kachalia was under any obligation to serve the Appellant-Assessee after the completion of management studies; (iv) that the Appellant-Assessee had paid education expenses of Mr Krishna Kachalia only because he happens to be belonging to the family controlling the Appellant-Assessee; (v) that the expenditure incurred on the education of Mr Krishna Kachalia was not incurred for the purpose of business of the Appellant-Assessee and therefore could not be allowed as deduction in the hands of the Appellant. In view of these categorical findings of fact, we have no hesitation in holding that the deduction claimed by the Appellant-Assessee has been rightly disallowed by the authorities below and we find no infirmity in the impugned order passed by the ITAT.17. On the same parity of reasoning, we find that even the expenses claimed as a deduction by the Appellant-Assessee for the payment of salary to Mr Krishna Kachalia was rightly disallowed by the authorities below. In this regard, the authorities below have come to a finding that the said Mr Krishna Kachalia was doing a management course with S.P. Jain Institute of Management & Research from October 2003 to April 2005 and therefore it was not possible that he was working for the company in the capacity of a Director at the same time when in fact he was a student. The authorities below have come to a finding that during the time Mr Krishna Kachalia was shown to be in-charge of the marketing activities at the Appellant-Assessees Borivali Center, another Director of the Appellant-Assessee was also looking after the marketing activities at the very same place and was paid a remuneration of Rs.10,00,000/- per annum for the said work. The authorities below have also found that in no other Center of the Appellant- Assessee was more than one Director assigned and the fact that Mr Krishna Kachalia was assigned to look after the work at Borivali in addition to another Director, his appointment was only for name sake. Despite the fact that it was sought to be urged that Mr Krishna Kachalia was rendering marketing services to the Assessee Company in the year under consideration and that he was instrumental in acquiring the distributorship of VOLVO and thereafter dealing with such distributorship, no evidence was led by the Appellant-Assessee to support and substantiate the same. We therefore find that even on this count the authorities below were fully justified in disallowing the said deduction.
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purely of a factual nature, does not raise any substantial question of law and the orders passed by the authorities below can in no way be said to be vitiated on the ground of perversity or any error apparent on the face of the record.13. The relianceplaced by Mr. Tiwari on a Division Bench judgment of this Court in the case of Sakal Papers Pvt.Ltd. v/s Commissioner of Income Tax, reported in (1978) 114 ITR 256 (Bom) is wholly misplaced.the present case, the authorities have found that the expenditure incurred for the education of the Director of theviz. Mr Krishna Kachalia was out of personal consideration and not commercial consideration. The authorities below, being fact finding authorities, have come to the aforesaid conclusion after taking into consideration the totality of the facts and circumstances of the case. We find the said findings in consonance with the facts and circumstances of the present case. Furthermore, the judgment in Sakal Papers Pvt. Ltd. (supra) has been considered by another Division Bench of this Court in Income Tax Appeal No.840 of 2012 in the case of D.C. Mehta v/s The Income Tax Officer 11(2)(2) and anr., dated 11th March 2014. The reliance placed by Mr. Ahuja on the judgment in the case of D. C. Mehta (supra) is well founded. In the facts of that case, the Assessee, Mr. D. C. Mehta, was a Advocate by profession. In the return of income filed by the Assessee, the Assessing Officer noticed a deduction of Rs.22,25,614/claimed by the Assessee as expenditure incurred for higher education for his daughter, Hemali. The justification for the said deduction was that she joined the Appellants firm of Advocates and gave an undertaking that on attaining higher qualification and degree from the University abroad, she would join the firm for a minimum period of five years and thus, the said expenditure was incurred for the business of the Assessee and was allowableas a deduction. This Court had the occasion to consider the judgment in the case of Sakal Papers Pvt.Ltd. (supra) when it held that the facts were different and distinct from the facts in Sakal Papers Pvt.Ltd.sfind that the facts of the present case are totally different from that in the case of Sakal papers Pvt. Ltd. and almost identical to that in D. C. Mehtas case. In the case of D. C. Mehta (supra) this court did not interfere with the findings of the authorities below in disallowing the deduction to the Assessee. In this view of the matter, we find that the reliance placed by Mr. Tiwari on the judgment of this Court in the case of Sakal Papers Pvt.Ltd. (supra)5. Similarly, we also find that the reliance placed by Mr Tiwari on the judgments of the supreme Court in the case of Commissioner of Income Tax v/s Chandulal Keshavlal and Co., reported in (1960) 38 ITR 601 and in the case of S.A. Builders Ltd. v/s Commissioner of Income Tax (Appeals) and anr., reported in (2007) 288 ITR 1 are also of no assistance.In thepresent case, we find that the reliance placed on the aforesaid judgments is of no assistance to theIn the facts of the present case, the authorities below have come to a categorical finding (i) that the expenditure incurred was not for the purpose of business of theand was out of personal consideration and not out of any commercial consideration; (ii) that thefiled no evidence that it had framed any Rules or Regulations for incurring expenditure on the education of the son of the director or any other employee; (iii) that thehad not filed any details which would indicate that the said Mr Krishna Kachalia was under any obligation to serve theafter the completion of management studies; (iv) that thehad paid education expenses of Mr Krishna Kachalia only because he happens to be belonging to the family controlling the(v) that the expenditure incurred on the education of Mr Krishna Kachalia was not incurred for the purpose of business of theand therefore could not be allowed as deduction in the hands of the Appellant. In view of these categorical findings of fact, we have no hesitation in holding that the deduction claimed by thehas been rightly disallowed by the authorities below and we find no infirmity in the impugned order passed by the ITAT.17. On the same parity of reasoning, we find that even the expenses claimed as a deduction by thefor the payment of salary to Mr Krishna Kachalia was rightly disallowed by the authorities below. In this regard, the authorities below have come to a finding that the said Mr Krishna Kachalia was doing a management course with S.P. Jain Institute of ManagementResearch from October 2003 to April 2005 and therefore it was not possible that he was working for the company in the capacity of a Director at the same time when in fact he was a student. The authorities below have come to a finding that during the time Mr Krishna Kachalia was shown to beof the marketing activities at theBorivali Center, another Director of thewas also looking after the marketing activities at the very same place and was paid a remuneration of Rs.10,00,000/per annum for the said work. The authorities below have also found that in no other Center of the AppellantAssessee was more than one Director assigned and the fact that Mr Krishna Kachalia was assigned to look after the work at Borivali in addition to another Director, his appointment was only for name sake. Despite the fact that it was sought to be urged that Mr Krishna Kachalia was rendering marketing services to the Assessee Company in the year under consideration and that he was instrumental in acquiring the distributorship of VOLVO and thereafter dealing with such distributorship, no evidence was led by theto support and substantiate the same. We therefore find that even on this count the authorities below were fully justified in disallowing the said deduction.
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T. S. Srinivasan Vs. Commissioner Of Income Tax, Madras | mainly spiritual benefit to the father and the power to adopt is conferred on him to achieve that object. The doctrine evolved wholly for a secular purpose would be inappropriate to a case of adoption. We should be very reluctant to extend it to adoption, as it would lead to many anomalies and in some events defeat the object of the conferment of the power itself. The scope of the power must be reasonably construed so as to enable the donee of the power to discharge his religious duty. We, therefore, hold that the existence of a son in embryo does not invalidate an adoption."9. The question that arises is whether this doctrine of Hindu Law can be applied for the purpose of determining the coming into being of a Hindu undivided family as an assessable entity. As this Court held in AIR 1964 SC 510 , the doctrine is not of universal application and it applies mainly for the purpose of determining right to property and safeguarding such rights of the son. It seems to us that this doctrine does not fit in with the scheme of the Act, and it could not have been the intention of the Legislature to have incorporated the special doctrine into the Act. Section 3 of the Act charges the total income of the previous year of every individual, Hindu undivided family, company and local authority, and of every firm and other association of persons or the partners of the firm or the members of the association individually. Section 4 includes in the total income of any person all income, profits and gains, inter alia, if such person is resident, which accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year. Income can accrue or arise day-to-day or at the end of the year, and it would be surprising to say that for the purpose of the Act it is not known at a particular time to which entity income is accruing or arising. At the relevant time, under S. 22 of the Act the Income-tax Officer was required to give notice by publication in the press and by publication in the press and by publication in the prescribed manner, requiring every person whose total income in the previous year exceeded the maximum amount which is not chargeable to income-tax to furnish within such period not being less than sixty days as may be specified in the notice, a return in the prescribed form and verified in the prescribed manner, setting forth his total income and total world income during that year. Under sub-section (2), the Income-tax Officer could serve a notice upon a particular person requiring him to furnish within a period not less than 30 days a return in the prescribed form. The person had then to file a return. If the contention of Mr. Sastri is right, in many cases an assessee would not have been able to file a return Suppose the wife of an assessee conceived in February, 1954, and his accounting year was the year ending March 31, 1954. By June/ July 1954 the assessee would not know whether he should file the return as an individual or as Hindu undivided family because he would not know whether the child was going to be a son or a daughter. However, if a conditional return was filed, the Income-tax Officer would have to hold his hands and not assess till the child was delivered.Part IIIA of the prescribed form required the following particulars to be filled up in the case of a Hindu undivided family:Serial No. Names of members of the family at the end of the previous year who were entitled to claim partition Relationship Age at the end of the previous Year RemarksThis form clearly proceeds on the basis that all members were in existence at the end of previous year. Has a son in the womb at the end of the previous year and born in the assessment year any age at the end of the previous year? Would it have a name at the end of the previous year? We find it extremely difficult to reconcile this doctrine of Hindu Law with the aforesaid provisions of the Act. We would not be justified in introducing uncertainties and anomalies in the working of the Act by introducing this doctrine for the purpose of S. 3 of the Act.10. Apart from the difficulty of reconciling this doctrine with the scheme of the Act, Mr. Sastri has not been able to satisfy us that any rights of the son are being affected by not recognising his existence for the purposes of S. 3 of the Act till he is actually born. Income-tax is a liability and it could not have been the intention of the legislature to impose a liability on persons yet unborn.11. Mr. Sastri contends in the alternative that what we are concerned with is the status at the end of the accounting year and that at least in this case where the child was in existence at the end of the accounting year, the status would be that of Hindu undivided family. This point was not raised before and the learned Attorney-General rightly objected to it being raised at this stage. But even if a Hindu undivided family was in existence towards the end of the accounting year, still the whole income received or accrued in the accounting year did not thereby become the assessable income of the Hindu undivided family Till the child was born the income which accrued to, or arose to, or was received by the assessee was his income. The Act disregards subsequent application of income and profits once they have arisen. When the income and profits arose, they belonged to the assessee, as no Hindu undivided family was then in existence. This position cannot be displaced by the birth of the son, which brought into existence a Hindu undivided family.12 | 0[ds]10. Apart from the difficulty of reconciling this doctrine with the scheme of the Act, Mr. Sastri has not been able to satisfy us that any rights of the son are being affected by not recognising his existence for the purposes of S. 3 of the Act till he is actually born. Income-tax is a liability and it could not have been the intention of the legislature to impose a liability on persons yet unborn.11. Mr. Sastri contends in the alternative that what we are concerned with is the status at the end of the accounting year and that at least in this case where the child was in existence at the end of the accounting year, the status would be that of Hindu undivided family. This point was not raised before and the learned Attorney-General rightly objected to it being raised at this stage. But even if a Hindu undivided family was in existence towards the end of the accounting year, still the whole income received or accrued in the accounting year did not thereby become the assessable income of the Hindu undivided family Till the child was born the income which accrued to, or arose to, or was received by the assessee was his income. The Act disregards subsequent application of income and profits once they have arisen. When the income and profits arose, they belonged to the assessee, as no Hindu undivided family was then in existence. This position cannot be displaced by the birth of the son, which brought into existence a Hindu undivided family. | 0 | 2,101 | 281 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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mainly spiritual benefit to the father and the power to adopt is conferred on him to achieve that object. The doctrine evolved wholly for a secular purpose would be inappropriate to a case of adoption. We should be very reluctant to extend it to adoption, as it would lead to many anomalies and in some events defeat the object of the conferment of the power itself. The scope of the power must be reasonably construed so as to enable the donee of the power to discharge his religious duty. We, therefore, hold that the existence of a son in embryo does not invalidate an adoption."9. The question that arises is whether this doctrine of Hindu Law can be applied for the purpose of determining the coming into being of a Hindu undivided family as an assessable entity. As this Court held in AIR 1964 SC 510 , the doctrine is not of universal application and it applies mainly for the purpose of determining right to property and safeguarding such rights of the son. It seems to us that this doctrine does not fit in with the scheme of the Act, and it could not have been the intention of the Legislature to have incorporated the special doctrine into the Act. Section 3 of the Act charges the total income of the previous year of every individual, Hindu undivided family, company and local authority, and of every firm and other association of persons or the partners of the firm or the members of the association individually. Section 4 includes in the total income of any person all income, profits and gains, inter alia, if such person is resident, which accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year. Income can accrue or arise day-to-day or at the end of the year, and it would be surprising to say that for the purpose of the Act it is not known at a particular time to which entity income is accruing or arising. At the relevant time, under S. 22 of the Act the Income-tax Officer was required to give notice by publication in the press and by publication in the press and by publication in the prescribed manner, requiring every person whose total income in the previous year exceeded the maximum amount which is not chargeable to income-tax to furnish within such period not being less than sixty days as may be specified in the notice, a return in the prescribed form and verified in the prescribed manner, setting forth his total income and total world income during that year. Under sub-section (2), the Income-tax Officer could serve a notice upon a particular person requiring him to furnish within a period not less than 30 days a return in the prescribed form. The person had then to file a return. If the contention of Mr. Sastri is right, in many cases an assessee would not have been able to file a return Suppose the wife of an assessee conceived in February, 1954, and his accounting year was the year ending March 31, 1954. By June/ July 1954 the assessee would not know whether he should file the return as an individual or as Hindu undivided family because he would not know whether the child was going to be a son or a daughter. However, if a conditional return was filed, the Income-tax Officer would have to hold his hands and not assess till the child was delivered.Part IIIA of the prescribed form required the following particulars to be filled up in the case of a Hindu undivided family:Serial No. Names of members of the family at the end of the previous year who were entitled to claim partition Relationship Age at the end of the previous Year RemarksThis form clearly proceeds on the basis that all members were in existence at the end of previous year. Has a son in the womb at the end of the previous year and born in the assessment year any age at the end of the previous year? Would it have a name at the end of the previous year? We find it extremely difficult to reconcile this doctrine of Hindu Law with the aforesaid provisions of the Act. We would not be justified in introducing uncertainties and anomalies in the working of the Act by introducing this doctrine for the purpose of S. 3 of the Act.10. Apart from the difficulty of reconciling this doctrine with the scheme of the Act, Mr. Sastri has not been able to satisfy us that any rights of the son are being affected by not recognising his existence for the purposes of S. 3 of the Act till he is actually born. Income-tax is a liability and it could not have been the intention of the legislature to impose a liability on persons yet unborn.11. Mr. Sastri contends in the alternative that what we are concerned with is the status at the end of the accounting year and that at least in this case where the child was in existence at the end of the accounting year, the status would be that of Hindu undivided family. This point was not raised before and the learned Attorney-General rightly objected to it being raised at this stage. But even if a Hindu undivided family was in existence towards the end of the accounting year, still the whole income received or accrued in the accounting year did not thereby become the assessable income of the Hindu undivided family Till the child was born the income which accrued to, or arose to, or was received by the assessee was his income. The Act disregards subsequent application of income and profits once they have arisen. When the income and profits arose, they belonged to the assessee, as no Hindu undivided family was then in existence. This position cannot be displaced by the birth of the son, which brought into existence a Hindu undivided family.12
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10. Apart from the difficulty of reconciling this doctrine with the scheme of the Act, Mr. Sastri has not been able to satisfy us that any rights of the son are being affected by not recognising his existence for the purposes of S. 3 of the Act till he is actually born. Income-tax is a liability and it could not have been the intention of the legislature to impose a liability on persons yet unborn.11. Mr. Sastri contends in the alternative that what we are concerned with is the status at the end of the accounting year and that at least in this case where the child was in existence at the end of the accounting year, the status would be that of Hindu undivided family. This point was not raised before and the learned Attorney-General rightly objected to it being raised at this stage. But even if a Hindu undivided family was in existence towards the end of the accounting year, still the whole income received or accrued in the accounting year did not thereby become the assessable income of the Hindu undivided family Till the child was born the income which accrued to, or arose to, or was received by the assessee was his income. The Act disregards subsequent application of income and profits once they have arisen. When the income and profits arose, they belonged to the assessee, as no Hindu undivided family was then in existence. This position cannot be displaced by the birth of the son, which brought into existence a Hindu undivided family.
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Pomal Kanji Govindji and Ors Vs. Vrajlal Karsandas Purohit and Ors | no specific authority in the lease which stated that the lease would continue beyond the period of mortgage. There is no extended authority as contemplated in Jadavji Purshottams case found in this case. The submission was that the matter should be considered by a larger Bench in the light of the Jadavji Purshottams case (supra). We are unable to accept the said submission. In this case the words in the mortgage deed, as we are taken through, did not clearly allow creation of tenancy beyond the period of mortgage. That, in any event, would not have been prudent management, hence, there is no finding that the mortgage deed permitted, either expressly or impliedly, creation of tenancy beyond the period. We think that the tenants were not entitled to protection after redemption of mortgage. Furthermore, in all these cases the authority of the mortgagees to lease out the property, expressed or implied, was circumscribed by a stipulation that the mortgage should re-deliver the possession of the property when the mortgage was redeemed. In that context, we are of the opinion that the submissions on behalf of the tenants cannot be entertained. 46. As mentioned hereinbefore, Sh. B.K. Mehta, especially in the background of the facts in C.A. No. 9993/83, has made certain submissions relying on the observations of this Court in Jadavji Purshottams case (supra). That decision requires recapitulation of the basic principle. That decision reiterated that the tenant-appellant therein was not inducted into possession soon after the mortgage deed was executed and the mortgage was put into possession of the property but long thereafter. It is not necessary to detain us on the facts of this case. The basis of that decision was: whether the Saurashtra Act was already in force. The appellant therein was inducted into possession and his tenancy rights could not have become enlarged after the mortgage granted him the lease by a subsequent legislation enacted for affording protection to tenants. In this case, relying on the said decision, it may be reiterated that the tenancy right was not created by a mortgage in possession, wherein the mortgagor had not concurred in the grant of a lease beyond the period of mortgage. The question in that decision was whether the lease granted to the tenant by the appellant had the approval or concurrence of the mortgagor so as to entitle the tenant to claim tenancy right even against the mortgagor after redemption of the mortgage. In all these cases the major term in the mortgage deed was that the possession would be delivered on redemption. In none of these cases was there any term, at least none was adverted to, which stipulated any condition in the mortgage deed which entitled the mortgagees to create tenancy beyond the period of the mortgage. This factor along with the condition in the mortgage deed postulating the obligation to deliver possession at the expiry of the term of mortgage to the mortgagors, in our opinion, are the decisive factors showing that the tenants did not get their rights enlarged on the coming into force of the subsequent Rent Legislation. The very Preamble to the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 indicates that it was An Act to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions (and also to control the charges for licence of premises etc.). It was thought expedient to amend and consolidate the law relating to the control of rents and repairs of certain premises in our opinion, has indeed never been construed as enlarging the rates of any group of tenants who were not the tenants of the mortgagors. Hence, the question of enlargement of right by tenant legislation of persons who were in occupation hut had no rights as tenants of the mortgagors, would not arise in the context of these cases. 47. Incidentally, it may be referred that in appeal from S.L.P. No. 8219/82, this question does not arise. 48. In C.A. No. 1286/81, the tenancy after the period of mortgage was not bona fide. In C.A. No. 9993/83, it was submitted that the tenants were inducted after the mortgage on 28th April, 1943. The Bombay Rent Act was made applicable to the area of Kutch in September, 1951. See -Dalas Rent Act, 4th Edn. page 814. On that basis it was submitted that as there was no Act in the area of Kutch which is in pari materia with the Bombay Rent Act and therefore the rights of the tenants were enlarged by the subsequent Act. In view of the fact that the mortgage deed did not contemplate rights of the mortgagees to grant tenancy beyond the period of mortgage, and had imposed an obligation that on the expiry of the period of mortgage, mortgagors were entitled to the possession of the demised premises. In our opinion, these contentions cannot be entertained. 49. Incidentally, it may also be mentioned that in C.A. No. 1286/81, the suit property was mortgaged in 1948 for a period of 5 years. The tenant was inducted by the mortgage in 1955. The period of mortgage had expired in 1953. Apparently, the mortgage had inducted the tenant after expiry of the period of mortgage, and such a conduct was grossly imprudent management, and was not bona fide. Such tenant cannot, in any event, claim any protection. 50. Having considered the facts and the circumstances and the ratio of the decision in Jadavji Purshottams case (supra), we are clearly of the opinion that the tenancy rights did not come to be enlarged by the Tenancy Legislation after the tenant was put into possession by the mortgage and the tenancy created in favour of the tenants by the mortgagor did not have the concurrence of the mortgagor so as to claim tenancy rights even after redemption of the mortgage. See the observations in para 12 of the Jadavji Purshottams case (supra). | 0[ds]25. Whether in the facts and the circumstances of these cases, the mortgage transaction amounted to clog on the equity of redemption, is a mixed question of law and fact. Courts do not look with favour any clause or stipulation which clogs equity of redemption. A clog on the equity of redemption is unjust and unequitable. The principles of English law, as we have noticed from the decisions referred to hereinbefore which have been accepted by this Court in this country, looks with disfavour at clogs on the equity of redemption. Section 60 of the Transfer of Property Act, in India, also recognises the same position.26. It is a right of the mortgagor on redemption, by reason of the very nature of the mortgage, to get back the subject of the mortgage and to hold and enjoy as he was entitled to hold and enjoy it before the mortgage. If he is prevented from doing so or is prevented from redeeming the mortgage, such prevention is bad in law. If he is so prevented, the equity of redemption is affected by that whether aptly or not, and it has always been termed as a clog. Such a clog is inequitable. The law does not countenance it.Bearing the aforesaid background in mind, each case has to be judged and decided in its own perspective. As has been observed by this Court that long-term for redemption by itself, is not a clog on equity of redemption. Whether or not in a particular transaction there is a clog on the equity of redemption, depends primarily upon the period of redemption, the circumstances under which the mortgage was created, the economic and financial position of the mortgagor, and his relationship vis-a-vis him and the mortgagee, the economic and social conditions in a particular country at a particular point of time, custom, if any, prevalent in the community or the society in which the transaction takes place, and the totality of the circumstances under which a mortgage is created, namely, circumstances of the parties, the time, the situation, the clauses for redemption either for payment of interest or any other sum, the obligations of the mortgage to construct or repair or maintain the mortgaged property in cases of usufructuary mortgage to manage as a matter of prudent management, these factors must be co-related to each other and viewed in a comprehensive conspectus in the background of the facts and the circumstances of each case, to determine whether these are clogs on equity of redemption.30. Whether in a particular case there is any clog on the equity of redemption, has to be decided in view of its background of the particular case. The doctrine of clog on equity of redemption has to be moulded in the modern conditions. See Mulla: Transfer of Property Act, 17th Edn. 402. Law does not favour any clog on equity of redemption.31. It is a settled law in England and in India that a mortgage cannot be made altogether irredeemable or redemption made illusory. The law must respond and be responsive to the felt and discernible compulsions of circumstances that would be equitable, fair and just, and unless there is anything to the contrary in the Statute, law must take cognisance of that fact and act accordingly. In the context of fast changing circumstances and economic stability, long-term for redemption makes a mortgage an illusory mortgage, though not decisive. It should prima facie be an indication as to how clogs on equity of redemption should be judged.32. In the facts and the circumstances and in view of the long period for redemption, the provision for interest @ I /2% per annum payable on the principal amount at the end of the long period, the clause regarding the repairs etc., and the mortgagors financial condition, all these suggest that there was clog on equity. The submissions made by Mr. Sachar and Mr. Mehta are, therefore, unacceptable. ,33. In that view of the matter, we are of the opinion that the decision of the High Court as well as the Courts below that there existed clog on the equity of redemption in case of these mortgages, is correct and proper, and we hold so accordingly.34. Before we dispose of the contentions on the second aspect, we must deal with some of the decisions of the Gujarat High Court to which reference had been made and some of which also referred before us. We have noticed the decision of the Gujarat High Court in Klhatubai Nathu Sumravs. Rajgo Mulji Nanji and Ors (supra). In Maganlal Chhotalal Chhatrapati and Ors. v. Bhalchandra Chhaganlal Shah 15 GLR 193 , P.D. Desai, J. as the learned Chief Justice then was, held that the doctrine of clog on the equity of redemption means that no contract between a mortgagor and mortgage made at the time of the mortgage and as apart of the mortgage transaction or, in other words, as a part of the loan, would be valid if it in substance and effect prevents the mortgagor from getting back his property on payment of what is due on his security. Any such bargain which has that effect is invalid. The learned Judge reiterated that whether in a particular case long term amounted to a clog on the equity of redemption had to be decided on the evidence on record which brings out the attending circumstances or might arise by necessary implication on a combined reading of all the terms of the mortgage. The learned Judge found that this long term of lease along with the cost of repairing or reconstruction to be paid at the time of redemption by the mortgagor indicated that there was clog on equity of redemption. The learned Judge referred to certain observations of Mr. Justice Macklin of the Bombay High Court where Justice Macklin had observed that anything which does have the appearance of clogging redemption must be examined critically, and that if the conditions in the mortgage taken as a whole and added together do create unnecessary difficulties in the way of redemption it seems that is a greater or less clog upon the equity of redemption within the ordinary meaning of the term. In our opinion, such observations will apply with greater force in the present inflationary market. The other decision to Which reference may be made is the decision of the Gujarat High Court in Soni Motiben v. Hiralal Lakhamshi 22 GLR 473. This also reiterates the same principle. In Vadilal Chhaganlal Soni and Ors v. Gokaldas Mansukh and Ors. AIR1953Bom408 also, the same principle was reiterated. In that case, it was held by Gajendragadkar J., as the learned Chief Justice then was, that the agreement between the mortgagor and mortgage was that the mortgagor was to redeem the mortgage 99 years after its execution and the mortgage was given full authority to build any structure on the plot mortgaged after spending any amount he liked. It was held that the two terms of the mortgage were so unreasonable and oppressive that these amounted to clog on the equity of redemption. Similar is the position in the case of Sarjug Mahto and Ors v. Smt. Devrup Devi and Ors AIR1963Pat114 , where also the mortgage was for 99 years. In Chhedi Lal v. Babu Nandans case (supra), the court reiterated that freedom of contract unless it is vitiated by undue influence or pressure of poverty should be given a free play. In the inflationary world, long term for redemption would prima facie raise a presumption of clog on the equity of redemption. See also the observations in Rashbehary Ghoses Law of Mortgage 6th Edn. pages 227 and 228.35. Bearing the aforesaid principles in mind, we must analyse the facts involved in these appeals. It has been noticed in S.L.P. (Civil) No. 8219 of 1982 that the High Court of Gujarat by its order impugned had dismissed the second appeal. The High Court had merely observed in dismissing the second appeal that the First Appellate Court had followed the decision of the Gujarat High Court in Khatubai Nathu Sumra v. Rajgo Mulji Nanji and Ors (supra). We have noted the salient features of the said decision. The High Court, therefore, found no ground to interfere with the decision of the First Appellate Court and accordingly dismissed the second appeal. The First Appellate Court by its judgment disposed of Civil Regular Appeal No. 149 of 1978 and another civil appeal which was the appeal by the tenant was also disposed of by the said judgment. The learned Judge of the Appellate Court had referred the ratio of the decision in Gangadhar v. Shankerlal (supra). The learned Judge bearing in mind the principle of the aforesaid decision and the relevant clause of Ext. 103 came to the conclusion that the clauses amounted to clog on the equity of redemption in the facts of this case. Shri Sachhar tried to urge before us that on the evidence and the facts in this case having regard to the position of the parties, the transaction did not amount to clog on the equity of redemption. It was emphasised by the First Appellate Court that the fact that the son of the mortgagor subsequently became Civil Judge would not affect the position because what was relevant was the financial condition at the time of the transaction. We have further to bear in mind that it has come out in the evidence that the father of the plaintiff was residing in the suit property at the relevant time and there was no other residential house except the suit property. The First Appellate Court, therefore, emphasised in our opinion rightly that if there was no pressure from the creditor, no body would like to mortgage the only house which is sole abode on the earth.36. In that view of the matter and in view of the position in law, we are of the opinion that the First Appellate Court was right in the view it took.37. The First Appellate Court referred to the decision of Kunjbiharilal v. Pandit Prag Narayan AIR 1922 Oudh 283. In that case there was a condition that the mortgagor should pay interest along with the principal amount at the time of redemption after 50 years. It was held that the intention was to see that right of redemption could never be exercised. If the condition was such which would result in making redemption rather difficult, if not impossible, it would be a clog on the equity of redemption and could not be enforced. Similar was the position of the Allahabad High Court in Rajai Singh v. Randhir Singh AIR1925All643 . There the term fixed for redemption was of 96 years and there was a stipulation for payment of interest alongwith principal not periodically but only at the time of redemption. In the instant case before us the mortgagor was required to pay the whole amount of interest at the end of 99 years which will practically make the redemption impossible. Applying the well-settled principles which will be applicable to the facts of this case in determining whether there was in fact a clog on the equity of redemption, we are of the opinion that the First Appellate Court was right in holding that there was a clog on equity of redemption.38. On the second aspect of the question whether the right of the tenants of the mortgagees are protected after the redemption of mortgage, reliance was placed by the First Appellate Court on the decision of the Full Bench of the Gujarat High Court in Lalji Purshottam v. Thacker Madhavji Meghaji (supra). There urban immovable property was mortgaged with possession, mortgage creating lease during the subsistence of the mortgage. The question was whether after redemption of mortgage such lease is binding on the mortgagor. It was held that Section 76(a) of the Transfer of Property Act would not apply to such cases. There must be express words showing an intention if tenancy was to be created beyond the term of the mortgage. Mere reference that mortgage is entitled to lease property does not create a binding tenancy on the mortgagor. After the redemption of the mortgage the relationship of landlord and tenant does not exist. Such tenant, therefore, does not get any protection under Section 12 of the Bombay Rent Control Act, it was held. The Gujarat High Court had referred to several decisions of this Court. In Mahabir Gope v. Harbans Narain Singh [1952]1SCR775 which was a decision dealing with a lease created by a mortgage with possession under the Bihar Tenancy Act, this Court reiterated that the general rule is that a person cannot by transfer or otherwise confer a better title on another than he himself has. A mortgage cannot, therefore, create an interest in the mortgaged property which will enure beyond the termination of his interest as mortgagee. Further the mortgagee, who takes possession of the mortgaged property, must manage it as person of ordinary prudence would manage if it were his own; and he must not commit any act which is destructive or permanently injurious to the property. Reliance maybe placed for this purpose on Section 76, Clauses (a) and (e) of the Transfer of Property Act, 1832. It was held that the provisions of Sections 20 and 21 of the Bihar Tenancy Act, did not apply to the lessees since they were not settled raiyats and the lessees could not claim to have secured under the statute occupancy rights in the land. It was further held that the mortgagor was entitled to the possession of the land upon redemption of the mortgage. In a slightly different context in Harihar Prasad Singh v. Must, of Munshi Nath Prasad [1956]1SCR1 this Court was concerned with a mortgage with possession effected on agricultural land. This Court had to consider in that decision whether under the provisions of the Bihar Tenancy Act the tenant inducted on the mortgaged property during the pendency of the mortgage could claim right to remain in possession after the redemption. Venkatarama Ayyer, J., speaking for the Court pointed out that if the tenant could not resist the suit for ejectment either by reason of Section 76(a) of the Transfer of Property Act or Section 21 of the Bihar Tenancy Act, the tenant could not get such a right as a result of the interaction of both those sections. This Court ultimately held that the tenants inducted by the mortgage with possession had failed to establish that they had any right of occupancy over the suit lands and that the plaintiffs were entitled to a decree in ejectment, with future mesne profits as claimed in the plaint. Thus a right claimable under Section 76(a) of the Transfer of Property Act because of a lease created in the course of prudent management of the property was put on a different footing altogether from a right created by a special statute.39. Similarly, in Asa Ram v. Mst. Ram Kali (1958 SCR 986), the question before this Court was again of mortgage of agricultural land when the mortgage was with possession and of the tenant inducted by the mortgage with possession. In Dahya Lal v. Rasul Mohammed Abdul Rahim [1963]3SCR1 , this Court was concerned with the case of a tenant inducted on agricultural land by a mortgage in possession. There under the Bombay Tenancy and Agricultural Lands Act, 1948, a tenant lawfully inducted by the mortgage on the, land would on redemption of the mortgage be deemed to be a tenant of the owner mortgagor under Section 4 of the Bombay Tenancy and Agricultural Act. This Court held that all persons other than those mentioned in Clauses (a), (b) and (c) of Section 4 of the Bombay Tenancy and Agricultural Lands Act, 1948, who lawfully cultivated land belonging to other persons whether or not their authority was derived directly from the owner of the land must be deemed tenants of the lands under Section 4 of the said Act. So, therefore, the Bombay Tenancy Act required at the relevant time the lawful cultivation by tenant. This Court had also considered this question in Prabhu v. Ramdev [1966]3SCR676 . There the same problem again arose in connection with a person inducted into agricultural land as a tenant by an usufructuary mortgage and the question was whether the rights of such a tenant were protected by the provisions of the Rajasthan Tenancy Act, 1955. In view of the special status, the tenant in question was held to be entitled to the protection. It must be noted as observed by the Full Bench of the Gujarat High Court thatall the cases that we have so far considered are cases of agricultural lands and in each of these cases the question was examined from two points; first, whether the lease could be said to be a lease granted in the course of prudent management and, in the alternative, whether the rights of the tenant inducted by the mortgage with possession had been enlarged as a result of a special statute dealing with the rights of tenants of agricultural lands.. This question, however, has been agitated before this Court in the background of the non-agricultural lands especially in urban areas. In All India Film Corporation v. Raja Cyan Nath [1970]2SCR581 , the question was in respect of lease of a cinema house granted by the mortgage with possession. Hidyatullah, C.J. delivering the judgment of the Court, observed in paragraph 7 that a general proposition of law is that no person can confer on another a better title than he himself has. A mortgage is a transfer of an interest in specific immovable property for the purpose of securing repayment of a loan. A mortgages interest lasts only as long as the mortgage has not been paid off. It was further observed by the learned Chief Justice that on redemption of the mortgage the title of the mortgage comes to an end. It was held that Section 111(c) of the Transfer of Property Act provides that a lease of immovable property determines where the interest of the lessor in the property terminates on, or his power to dispose of the same, extends only to the happening of any event - by the happening of such event. The duration of the mortgages interest determines his position as the lessor. But there is one exception. That flows from Section 76(a) which lays down liabilities of a mortgage in possession. It is provided there that when during the continuance of the mortgage, the mortgage takes possession of the mortgaged property, he must manage the property as a person of ordinary prudence would manage it if it were his own. It was observed that this principle applied ordinarily to the management of agricultural lands and has seldom been extended to urban property so as to tie it up in the hands of lessees or to confer on them rights under special statutes. It was emphasised by the Chief Justice that lease would continue to bind the mortgagor or persons deriving interest from him if the mortgagor had concurred to grant it. Ultimately, this Court in that case held that on the termination of the mortgage in the events that had happened in that particular case, that since there was no landlord and no tenant, the provisions of the Rent Restriction Act could not apply beyond the date of the termination of the mortgagees interest. Similar, is the view in the case of Sachalmal Parasram v. Ratnabai AIR1972SC637 . There, the question was whether the tenant was protected under the Madhya Pradesh Accommodation Control Act, 1961. The Court did not accept the rights of the tenant in possession.41. The question whether the tenant from usufructuary mortgage of building was entitled to protection on redemption of mortgage, was considered by the Full Bench of the Madras High Court in S.V. Venkatarama Reddiar v. Abdul Ghani Rowther and Ors. AIR1980Mad276 . There Justice Natarajan, as the learned Judge then was of the Madras High Court delivering the judgment of the Full Bench of the said Court held that if a tenancy was created by a mortgage with possession, the ties of landlord and tenant were snapped eon instant the mortgage is redeemed and, unless there is a fresh forging of the relationship of landlord and tenant between the mortgagor and the erstwhile tenant by (i) the voluntary act of the parties or (ii) a deemed forging of the relationship by express provision in the Act itself, the 1st while tenant cannot claim protection under the Act so as to perpetuate his occupation of the building as a tenant. The rule of exception contained in Section 76(a) of the T.P. Act cannot be readily and automatically invoked by a tenant let into possession of urban property by a mortgage with possession. The principle of exception afforded by Section 76(a) of that Act applies ordinarily to the management of agricultural lands and has seldom been extended to urban property so as to tie it up in the hands of lessees or to confer on them rights under special statutes. It may be open to a tenant inducted upon urban property by a mortgage with possession to rely upon Section 76(a) to claim tenancy right for the full term of the tenancy notwithstanding the redemption of the mortgage earlier. But, it is for the person who claims such benefits to strictly establish the binding nature of the tenancy, created by the mortgage, on the mortgagor. Reference may be made to a Full Bench decision of the Rajasthan High Court in Devkinandan and Anr. etc. v. Roshan Lal and Ors5 where several relevant authorities have been discussed. The question before the Full Bench was whether a tenant of a mortgage in possession is entitled to the protection of the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 against the mortgagor after the redemption of the mortgage. P.K. Banerjee, C.J. delivering the judgment of the Court after discussing all relevant authorities held that in respect of tenancy of urban property or premises, the mortgage in possession has no right to jeopardise the right of the mortgagor by giving a tenancy which would continue even after the redemption of the mortgage. This negates the submission that as a matter of prudent management the tenants had been inducted and after induction the tenants got their rights enlarged. In Lalji Purshottam v. Thacker Madhavji Meghaji (supra), where the Full Bench of the Gujarat High Court had considered the effect of continuation of tenancy under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 which are precisely the cases in the facts of the instant appeals, after discussing all the relevant provisions of the Act including the theory of the prudent management the Full Bench of the Gujarat High Court observed that where a lease is created by the mortgage in possession of an urban immovable property, such a lease would not be binding on the mortgagor after redemption of mortgage assuming that the lease is such as a prudent owner of property would have granted in usual course of management. The Court observed that that was so because Section 76(a) could not apply to a case of urban immovable property and hence a lease created by the mortgage in possession of an urban immovable property would not be binding on the mortgagor after redemption of the mortgage. Even apart from Section 76(a) of the Transfer of Property Act if the words of the mortgage deed clearly and indubitably express an intention to allow expressly creation of a tenancy beyond the term of the mortgage, then only the lease created in exercise of the power expressly conferred by the mortgage deed would be binding on the mortgagor, if the words of the mortgage deed do not clearly and indubitably disclose the intention to allow expressly the creation of a tenancy beyond the terms of the mortgage, the mere fact that the mortgage deed authorises the mortgage with possession to induct a tenant would not create a tenancy binding on the mortgagor after the redemption of the mortgage. In such a case a tenant inducted on the property by a mortgage with possession when the tenancy of that tenant is not binding on the mortgagor after the redemption of the mortgage, is not protected under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. We are of the opinion that the aforesaid view expressed by the Chief Justice given on behalf of the Full Bench represents the correct position in law in respect of the second aspect of the question canvassed before us.42. We have noticed the view of the Full Bench of the Rajasthan High Court on this aspect. This question was again envisaged by this Court in the background of the Rajasthan Premises Act in Om Prakash Garg v. Ganga Sahai and Ors. : AIR1988SC108 holding that on passing of the final decree of redemption of the mortgage, the lease did not subsist and the tenant is not entitled to protection under the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. Again viewing this question in the context of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 in Jadavji Purshottam v. Dhami Navnitbhai Amaratlal and Ors. [1988]1SCR76 , in which the judgment was delivered by Natarajan J., and one of us was a party to that decision, it was held that it was recognised by this Court in a number of cases that the question of imprudent management of the mortgaged property by the mortgage would not arise where the rights of the tenant were enlarged by the tenancy legislation enacted after the tenant was put in possession by the mortgage. Hence, in that case the question was whether the tenancy rights of the appellant-tenant, who was inducted by the mortgage, came to be enlarged by tenancy legislation after he was put in possession by the mortgage. The fact found in that case was that the tenant- appellant was not inducted into possession soon after the execution of mortgage deed and the mortgage was put in possession of the property but long thereafter. In fact, there was already a tenant on the mortgage property when the mortgage was put in possession. During the period of tenancy of that tenant the Saurashtra Act 22 of 1951 came to be enacted and gave protection to the tenants from paying exorbitant rent and from unreasonable eviction. Despite the enlargement of his tenancy rights by the Act, that tenant vacated the lease premises in 1956 and thereafter the mortgage inducted the appellant in possession. It: was held that that was a case where the Saurashtra. Act was already in force when the appellant was inducted into possession. The tenancy rights of the appellant cannot be said to have become enlarged after the mortgage granted him the lease by subsequent legislation enacted for affording protection to tenants. The fact that the mortgage had granted lease only for a period of one year will not alter the case in any manner as not only had the mortgage executed the lease deed after the expiry of the lease period but also because the restriction of the lease period to one year was of no consequence in view of the provisions contained in the Saurashtra Act 22 of 1951. The enlargement of the tenancy rights cannot also be claimed on the basis of the fact that the Bombay Rent Act had been enacted after the appellant was inducted into the property because the Saurashtra Act was already in force when the mortgage granted lease to the appellant and it was only from January 64 the Bombay Rent Act came to replace the Saurashtra Act. In Civil Appeal No. 9993 of 1982, Pomal Kanji Govindji and Ors. v. Vrajlal Karsandas Purohit and Ors., Shri B.K. Mehta took us to the factual background. The appellants who are tenants in the mortgage properties being defendants Nos. 4 to 9 in the original suit had resisted the suit for redemption and contended that the plaintiffs were not entitled to recover possession from them since their rights are protected under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and the said Act has applied to the area of Kutch in the Bombay State. Therefore, no decree for eviction could be passed against them except in accordance with the provisions of the said Act. The High Court held that redemption of mortgage was possible and the suit was maintainable as mentioned hereinbefore. However, as regards the question of protection of the tenants under the Bombay Rent Act, Shri Mehta proceeded to submit that the learned Judge did not make any finding as to when the tenants were inducted nor did he express his opinion about the evidence of respondent No. 5. Shri Mehta further submitted that the learned Judge did not make any finding as to when these tenants were inducted, either before or after the rent restriction Act was made applicable to the area of Kutch. On that basis, following the Full Bench decision of the Gujarat High Court in Laiji Purshottam v. Thacker Madhavji Meghaji (supra), the courts below rejected the claim of the tenants. Shri Mehta submitted that the High Court has erred in not following the settled legal position entrenched by a line of decisions of this Court that the rights of a tenant inducted by a mortgage with possession would ensure beyond the period of redemption of the mortgage if his rights are enlarged by subsequent tenancy legislations in force in the area in which the property is situated. He drew our attention to the decision in the case of Mahabir Gope v. Harbans Narain (supra). There as mentioned hereinbefore this Court had found that the provisions of sections 20 and 21 of the Bihar Tenancy Act, did not apply to the lessees since they were not settled raiyats. Shri Mehta also drew our attention to the observations of this Court in Asa Ram v. Mst. Ram Kali (supra). He also drew our attention to Dahya Lal v. Rasul Mahommed (supra) which we have discussed hereinbefore. Similar, was the position in Prabha v. Ramdev (supra) which is also being discussed hereinbefore. Reference was made to the decision in All India Film Corporation v. Gyan Nath (supra), the basis of which has been explained hereinbefore. The said decision will not be applicable in respect of the facts and circumstances of the case and in view of the terms of the tenancy. Our attention was drawn by Shri Mehta to the observations of this Court in Madan Lal v. Badri Narain and Ors : (1987)3SCC460 . In that case, it was contended before this Court that there was no such rule of general acceptance that a lease of urban property by the mortgage in possession cannot be regarded to be an act of prudent management within the meaning of Section 76(a) of the Transfer of Property Act which carves out an exception to the general rule that a mortgage in possession cannot create, in the tenant inducted by him, a right to continue in possession beyond the period of redemption. Before this Court, in that case, a reference was made to the Full Bench decision of the Rajasthan High Court in Devkinandan v. Roshan Lal (supra). But in view of the facts that there was no definite finding the question is whether the alleged lease was an act of prudent management on the part of the mortgage in possession in terms of Section 76(a) was left open and that to be determined by the learned trial Judge. It has been held by this Court in numerous decisions that in case of immovable properties in urban areas, unless the leases specifically and categorically make an exception in favour of the tenant that they would continue in possession even after the expiry of termination of the leases, and those leases were acts of prudent management in no other case, the tenants inducted by the mortgage would be entitled to the protection under the Rent Act after the redemption of mortgage.46. As mentioned hereinbefore, Sh. B.K. Mehta, especially in the background of the facts in C.A. No. 9993/83, has made certain submissions relying on the observations of this Court in Jadavji Purshottams case (supra). That decision requires recapitulation of the basic principle. That decision reiterated that the tenant-appellant therein was not inducted into possession soon after the mortgage deed was executed and the mortgage was put into possession of the property but long thereafter. It is not necessary to detain us on the facts of this case. The basis of that decision was: whether the Saurashtra Act was already in force. The appellant therein was inducted into possession and his tenancy rights could not have become enlarged after the mortgage granted him the lease by a subsequent legislation enacted for affording protection to tenants. In this case, relying on the said decision, it may be reiterated that the tenancy right was not created by a mortgage in possession, wherein the mortgagor had not concurred in the grant of a lease beyond the period of mortgage. The question in that decision was whether the lease granted to the tenant by the appellant had the approval or concurrence of the mortgagor so as to entitle the tenant to claim tenancy right even against the mortgagor after redemption of the mortgage. In all these cases the major term in the mortgage deed was that the possession would be delivered on redemption. In none of these cases was there any term, at least none was adverted to, which stipulated any condition in the mortgage deed which entitled the mortgagees to create tenancy beyond the period of the mortgage. This factor along with the condition in the mortgage deed postulating the obligation to deliver possession at the expiry of the term of mortgage to the mortgagors, in our opinion, are the decisive factors showing that the tenants did not get their rights enlarged on the coming into force of the subsequent Rent Legislation. The very Preamble to the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 indicates that it was An Act to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions (and also to control the charges for licence of premises etc.). It was thought expedient to amend and consolidate the law relating to the control of rents and repairs of certain premises in our opinion, has indeed never been construed as enlarging the rates of any group of tenants who were not the tenants of the mortgagors. Hence, the question of enlargement of right by tenant legislation of persons who were in occupation hut had no rights as tenants of the mortgagors, would not arise in the context of these cases.47. Incidentally, it may be referred that in appeal from S.L.P. No. 8219/82, this question does not arise.48. In C.A. No. 1286/81, the tenancy after the period of mortgage was not bona fide. In C.A. No. 9993/83, it was submitted that the tenants were inducted after the mortgage on 28th April, 1943. The Bombay Rent Act was made applicable to the area of Kutch in September, 1951. See -Dalas Rent Act, 4th Edn. page 814. On that basis it was submitted that as there was no Act in the area of Kutch which is in pari materia with the Bombay Rent Act and therefore the rights of the tenants were enlarged by the subsequent Act. In view of the fact that the mortgage deed did not contemplate rights of the mortgagees to grant tenancy beyond the period of mortgage, and had imposed an obligation that on the expiry of the period of mortgage, mortgagors were entitled to the possession of the demised premises. In our opinion, these contentions cannot be entertained.49. Incidentally, it may also be mentioned that in C.A. No. 1286/81, the suit property was mortgaged in 1948 for a period of 5 years. The tenant was inducted by the mortgage in 1955. The period of mortgage had expired in 1953. Apparently, the mortgage had inducted the tenant after expiry of the period of mortgage, and such a conduct was grossly imprudent management, and was not bona fide. Such tenant cannot, in any event, claim any protection.50. Having considered the facts and the circumstances and the ratio of the decision in Jadavji Purshottams case (supra), we are clearly of the opinion that the tenancy rights did not come to be enlarged by the Tenancy Legislation after the tenant was put into possession by the mortgage and the tenancy created in favour of the tenants by the mortgagor did not have the concurrence of the mortgagor so as to claim tenancy rights even after redemption of the mortgage. See the observations in para 12 of the Jadavji Purshottams case (supra). | 0 | 16,627 | 6,742 | ### 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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no specific authority in the lease which stated that the lease would continue beyond the period of mortgage. There is no extended authority as contemplated in Jadavji Purshottams case found in this case. The submission was that the matter should be considered by a larger Bench in the light of the Jadavji Purshottams case (supra). We are unable to accept the said submission. In this case the words in the mortgage deed, as we are taken through, did not clearly allow creation of tenancy beyond the period of mortgage. That, in any event, would not have been prudent management, hence, there is no finding that the mortgage deed permitted, either expressly or impliedly, creation of tenancy beyond the period. We think that the tenants were not entitled to protection after redemption of mortgage. Furthermore, in all these cases the authority of the mortgagees to lease out the property, expressed or implied, was circumscribed by a stipulation that the mortgage should re-deliver the possession of the property when the mortgage was redeemed. In that context, we are of the opinion that the submissions on behalf of the tenants cannot be entertained. 46. As mentioned hereinbefore, Sh. B.K. Mehta, especially in the background of the facts in C.A. No. 9993/83, has made certain submissions relying on the observations of this Court in Jadavji Purshottams case (supra). That decision requires recapitulation of the basic principle. That decision reiterated that the tenant-appellant therein was not inducted into possession soon after the mortgage deed was executed and the mortgage was put into possession of the property but long thereafter. It is not necessary to detain us on the facts of this case. The basis of that decision was: whether the Saurashtra Act was already in force. The appellant therein was inducted into possession and his tenancy rights could not have become enlarged after the mortgage granted him the lease by a subsequent legislation enacted for affording protection to tenants. In this case, relying on the said decision, it may be reiterated that the tenancy right was not created by a mortgage in possession, wherein the mortgagor had not concurred in the grant of a lease beyond the period of mortgage. The question in that decision was whether the lease granted to the tenant by the appellant had the approval or concurrence of the mortgagor so as to entitle the tenant to claim tenancy right even against the mortgagor after redemption of the mortgage. In all these cases the major term in the mortgage deed was that the possession would be delivered on redemption. In none of these cases was there any term, at least none was adverted to, which stipulated any condition in the mortgage deed which entitled the mortgagees to create tenancy beyond the period of the mortgage. This factor along with the condition in the mortgage deed postulating the obligation to deliver possession at the expiry of the term of mortgage to the mortgagors, in our opinion, are the decisive factors showing that the tenants did not get their rights enlarged on the coming into force of the subsequent Rent Legislation. The very Preamble to the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 indicates that it was An Act to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions (and also to control the charges for licence of premises etc.). It was thought expedient to amend and consolidate the law relating to the control of rents and repairs of certain premises in our opinion, has indeed never been construed as enlarging the rates of any group of tenants who were not the tenants of the mortgagors. Hence, the question of enlargement of right by tenant legislation of persons who were in occupation hut had no rights as tenants of the mortgagors, would not arise in the context of these cases. 47. Incidentally, it may be referred that in appeal from S.L.P. No. 8219/82, this question does not arise. 48. In C.A. No. 1286/81, the tenancy after the period of mortgage was not bona fide. In C.A. No. 9993/83, it was submitted that the tenants were inducted after the mortgage on 28th April, 1943. The Bombay Rent Act was made applicable to the area of Kutch in September, 1951. See -Dalas Rent Act, 4th Edn. page 814. On that basis it was submitted that as there was no Act in the area of Kutch which is in pari materia with the Bombay Rent Act and therefore the rights of the tenants were enlarged by the subsequent Act. In view of the fact that the mortgage deed did not contemplate rights of the mortgagees to grant tenancy beyond the period of mortgage, and had imposed an obligation that on the expiry of the period of mortgage, mortgagors were entitled to the possession of the demised premises. In our opinion, these contentions cannot be entertained. 49. Incidentally, it may also be mentioned that in C.A. No. 1286/81, the suit property was mortgaged in 1948 for a period of 5 years. The tenant was inducted by the mortgage in 1955. The period of mortgage had expired in 1953. Apparently, the mortgage had inducted the tenant after expiry of the period of mortgage, and such a conduct was grossly imprudent management, and was not bona fide. Such tenant cannot, in any event, claim any protection. 50. Having considered the facts and the circumstances and the ratio of the decision in Jadavji Purshottams case (supra), we are clearly of the opinion that the tenancy rights did not come to be enlarged by the Tenancy Legislation after the tenant was put into possession by the mortgage and the tenancy created in favour of the tenants by the mortgagor did not have the concurrence of the mortgagor so as to claim tenancy rights even after redemption of the mortgage. See the observations in para 12 of the Jadavji Purshottams case (supra).
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Transfer of Property Act which carves out an exception to the general rule that a mortgage in possession cannot create, in the tenant inducted by him, a right to continue in possession beyond the period of redemption. Before this Court, in that case, a reference was made to the Full Bench decision of the Rajasthan High Court in Devkinandan v. Roshan Lal (supra). But in view of the facts that there was no definite finding the question is whether the alleged lease was an act of prudent management on the part of the mortgage in possession in terms of Section 76(a) was left open and that to be determined by the learned trial Judge. It has been held by this Court in numerous decisions that in case of immovable properties in urban areas, unless the leases specifically and categorically make an exception in favour of the tenant that they would continue in possession even after the expiry of termination of the leases, and those leases were acts of prudent management in no other case, the tenants inducted by the mortgage would be entitled to the protection under the Rent Act after the redemption of mortgage.46. As mentioned hereinbefore, Sh. B.K. Mehta, especially in the background of the facts in C.A. No. 9993/83, has made certain submissions relying on the observations of this Court in Jadavji Purshottams case (supra). That decision requires recapitulation of the basic principle. That decision reiterated that the tenant-appellant therein was not inducted into possession soon after the mortgage deed was executed and the mortgage was put into possession of the property but long thereafter. It is not necessary to detain us on the facts of this case. The basis of that decision was: whether the Saurashtra Act was already in force. The appellant therein was inducted into possession and his tenancy rights could not have become enlarged after the mortgage granted him the lease by a subsequent legislation enacted for affording protection to tenants. In this case, relying on the said decision, it may be reiterated that the tenancy right was not created by a mortgage in possession, wherein the mortgagor had not concurred in the grant of a lease beyond the period of mortgage. The question in that decision was whether the lease granted to the tenant by the appellant had the approval or concurrence of the mortgagor so as to entitle the tenant to claim tenancy right even against the mortgagor after redemption of the mortgage. In all these cases the major term in the mortgage deed was that the possession would be delivered on redemption. In none of these cases was there any term, at least none was adverted to, which stipulated any condition in the mortgage deed which entitled the mortgagees to create tenancy beyond the period of the mortgage. This factor along with the condition in the mortgage deed postulating the obligation to deliver possession at the expiry of the term of mortgage to the mortgagors, in our opinion, are the decisive factors showing that the tenants did not get their rights enlarged on the coming into force of the subsequent Rent Legislation. The very Preamble to the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 indicates that it was An Act to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions (and also to control the charges for licence of premises etc.). It was thought expedient to amend and consolidate the law relating to the control of rents and repairs of certain premises in our opinion, has indeed never been construed as enlarging the rates of any group of tenants who were not the tenants of the mortgagors. Hence, the question of enlargement of right by tenant legislation of persons who were in occupation hut had no rights as tenants of the mortgagors, would not arise in the context of these cases.47. Incidentally, it may be referred that in appeal from S.L.P. No. 8219/82, this question does not arise.48. In C.A. No. 1286/81, the tenancy after the period of mortgage was not bona fide. In C.A. No. 9993/83, it was submitted that the tenants were inducted after the mortgage on 28th April, 1943. The Bombay Rent Act was made applicable to the area of Kutch in September, 1951. See -Dalas Rent Act, 4th Edn. page 814. On that basis it was submitted that as there was no Act in the area of Kutch which is in pari materia with the Bombay Rent Act and therefore the rights of the tenants were enlarged by the subsequent Act. In view of the fact that the mortgage deed did not contemplate rights of the mortgagees to grant tenancy beyond the period of mortgage, and had imposed an obligation that on the expiry of the period of mortgage, mortgagors were entitled to the possession of the demised premises. In our opinion, these contentions cannot be entertained.49. Incidentally, it may also be mentioned that in C.A. No. 1286/81, the suit property was mortgaged in 1948 for a period of 5 years. The tenant was inducted by the mortgage in 1955. The period of mortgage had expired in 1953. Apparently, the mortgage had inducted the tenant after expiry of the period of mortgage, and such a conduct was grossly imprudent management, and was not bona fide. Such tenant cannot, in any event, claim any protection.50. Having considered the facts and the circumstances and the ratio of the decision in Jadavji Purshottams case (supra), we are clearly of the opinion that the tenancy rights did not come to be enlarged by the Tenancy Legislation after the tenant was put into possession by the mortgage and the tenancy created in favour of the tenants by the mortgagor did not have the concurrence of the mortgagor so as to claim tenancy rights even after redemption of the mortgage. See the observations in para 12 of the Jadavji Purshottams case (supra).
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R.L. Butail Vs. Union of India and Others | such authority must take necessary action to serve three months notice in terms of cl. (j) of F. R. 56. That the requisite notice in terms of cl. (i) of F.R. 56 was served on the appellant is not in dispute. In Union of India v. Col. J. N. Sinha ([1971] 1 S.C.R. 791.) this Court stated that F. R. 56(j) in express terms confers on the appropriate authority an absolute right to retire a Government servant on his attaining the age of 55 years if such authority is of the opinion that it is in public interest so to do. The decision further states."If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an agrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision."The appellant relied on Moti Ram Deka v. General Manager, N.E.F. Railways ([1964] 5 S.C.R. 587.) where rules 148 (3) and 149 (3) of the Indian Railway Establishment Code were held to contravene Art. 311 (2), and therefore, invalid. That decision cannot apply to the present case as the rules there in question dealt with the right to terminate service on notice of a prescribed period. The Court there held that a rule cannot confer on the Railway administration power to terminate service while at the same time laying down the age, of superannuation so as to be in contravention of the provisions of Art. 311(2). Similarly, in Gurdev Singh Sidhu v. Punjab([1964] 57 S.C.R. 587.) a rule conferring an absolute right to retire a Government servant after he had completed ten years of qualifying service, though providing that such power shall not be exercised except when it is in public interest, was struck down as contravening Art. 311(2). The Court, however, held that there were two valid exceptions to the protection afforded by Art. 3 11 (2). These were (1) where a permanent public servant was asked to retire on the ground that he had reached the age of superannuation which was reasonably fixed, and (2) that he was compulsorily retired under the rules which prescribed the normal age of superannuation and provided a reasonably long period of qualifying service after which alone compulsory retirement could be ordered. The first would not amount to dismissal or removal from service within Art. 311(2) and the second would be justified by the view taken by this Court in a long series of decisions. In T. C. Shivacharana Singh v. Mysore, (A.I.R. 1965 S.C. 280.) rule 255 of the Mysore Civil Services Rules, 1958 conferring power on Government to retire compulsorily a Government servant in public interest on his completing twenty-five years of qualifying service or attaining fifty years of age, though the age of normal superannuation under r. 95 (a) was fixed at fifty-five years, was upheld on the ground that the rule laid down a reasonably long period of qualifying service. (See Takhatrav Shivdatrai Mankad v. Gujarat, ([1969] (2) S.C.C. 120.) particularly the observations at p. 123).Since the question of validity of such a rule has thus been concluded, such a challenge is no longer available to the appellant.13. The affidavit in reply by the respondents, dated February 6, 1968, in clear terms avers that before passing the impugned order the appropriate authority, in accordance with the said Office Memorandum of the Ministry of Home Affairs, reviewed the case of the appellant and came to the conclusion that it was in public interest that he should be compulsorily retired on his attaining fifty-five Vears of age. The affidavit also avers that the appropriate authority had "carefully considered all relevant factors relating to the case of the petitioner (the appellant) and came to the definite opinion that it was not in the public interest to retain the petitioner in service beyond the date on which he attained the age of fifty-five years." In their reply-affidavit, dated July, 10, 1967, in *.P. 1550 of 1967 it is further stated that before the said decision was reached, the appellants entire service record was considered including his confidential reports, that where such reports were adverse they had been earlier communicated to him from time to time, that the appellant had made representations against them to the competent authority and even personal interviews before superior officers had been granted to him to vindicate his point of view. It was after all this had been done and the confidential reports had remained unaltered that the appropriate authority considered his entire record of service and then reached the conclusion that F. R. 56(j) should be resorted to. It may well be that in spite of the work of the appellant being satisfactory. as he claimed it was, there may have been other relevant factors, such as the history of the appellants entire service and confidential reports throughout the period of his service, upon which the appropriate authority may still decide to order appellants retirement under F. R. 56(j). Further, there is nothing to show that the impugned order was not in public interest. As aforesaid, Col J. N. Sinhas case([1971] 1 S. C. R. 791.) clearly lays down that the question as to the correctness of such a decision by the appropriate authority, provided it is bona fide, would not be gone into by this Court. We have already negatived the plea of mala fides raised by the appellant.Consequently, a plea of lack of bona fides can hardly be entertained. Likewise, the plea that the appropriate authority had not applied its mind must also fail in view of the clear averments made in that regard in the affidavits cited earlier, no reason having been adequately shown to discard those statements as untrue or otherwise unbelievable. That being the position, we are constrained to come to the conclusion that the appellant has-failed to make out his case in any one of his three writ petitions. | 0[ds]Further, the rules do not provide for nor require an opportunity to be heard before any adverse entry is made. The contention that an enquiry would be necessary before an adverse entry is made suffers from a misapprehension that such an entry amounts to the penalty of censure set out in r. 1 1 of the Central Civil Services (Classification, Control and Appeal) Rules. The entry is made under the Office Order of 1961 set out above by way of an annual assessment of the work done by the Government servant and not by way of a penalty under the said Central Civil Services Rules. True it is that such remarks would be, taken into consideration when a question such as that of promotion arises and when comparative merits of persons eligible for promotion are considered. But then, whenever a Government servant a aggrieved by an adverse entry he has an opportunity of making a representation. Such a representation would be considered by a higher authority, who, if satisfied, would either amend, correct or even expunge a wrong entry, so that it is not as if an aggrieved Government servant is without remedy. Making of an adverse entry is thus not equivalent to imposition of a penalty which would necessitate an enquiry or the giving of a reasonable opportunity of being heard to the concerned Government servant. This part of the appellants grievance, therefore, has to be rejected.The Departmental Promotion Committee and the Union Public Service Commission which met in 1964 and 1965 did not recommend or select the appellant for the post of Director (Selection Grade) or that of a Member. The argument was that being the only permanent director amongst all the rest of the directors, . he was the senior most of them all. Yet, one Aswath was first promoted to the post of Director (Selection- Grade) in December 1964 and then a few days later to the post of Member. In this connection the appellants allegations were two. The first was that the adverse confidential reports for 1964 and 1965 were placed before the Departmental Promotion Committee and the Commission long before they were communicated to him and therefore before he could make any representation against them. Consequently, the two bodies had no opportunity of knowing his side of the case and relying on the said reports only overlooked his right to promotion. Further, the refusal to recommend him for the higher post amounted to withholding of promotion, a penalty which could not be inflicted on him without a departmental inquiry. The second was that in any case Aswath ought not to have been raised to the higher post as allegations of financial irregularities were outstanding against him in consequence of which he resigned on August 1, 1965 and left for the United States of The confidential report in respect of the appellant for the year 1964 was prepared on March 18, 1965. It was, no doubt, released to the appellant on September 16, 1965. But the Promotion Committee met in May 1964 and recommended Aswath for the post of Director (Selection Grade). Aswath was promoted to that post in December 1964. Obviously, the adverse entry for the year 1964 was not and could not be before that Committee. If at all the Committee declined to recommend the appellants name because of adverse confidential reports, such reports could only be for the earlier years. The record shows that confidential reports for 1955, 1958 and 1959 were adverse to him. These had been communicated to him from time to time and the appellant had made representations against them and bad failed. Aswath was appointed a member on December 30, 1964 when the appellant was again overlooked both by the Promotion Committee and the Public Service Commission. But that again could not be on account of the confidential report for 1964, which as aforesaid, was recorded much later in March 1965.The confidential report for 1965 was prepared in 1966. Therefore, the report for 1965 would not be before that Committee when it declined to recommend the appellant in 1965. This time the report for 1964 would be before it and that too without his representation against it as, , that report had been conveyed to the appellant in September 1965. That fact, however, cannot make any difference. The representation made by the appellant, though made subsequently, was actually rejected with the result that the confidential report for 1964 remained unchanged. The practice followed by the Promotion Committee was that if in such a case a representation were to be accepted and in consequence the confidential report was altered or expunged. the Promotion Committee would have to review its recommendations in the light of such a result. In the present case, however, no question of such a review arose as reports for 1964 and 1965 were, in spite of representations by the appellant, neither altered nor set aside. There was, therefore, no question of any injustice having been done to the appellant despite the fact that the Committee had before it the confidential report without there being along with it, any representation made by the appellant. Nor did the question of a breach of natural justice arise in view of the aforesaid practice followed by the Promotionr. 11 of the Central Services Rules, 1965, although withholding promotion is one of the penalties which can be imposed on a Government servant, the explanation thereto expressly provides that non-promotion of a Government servant after consideration of his case does not constitute a penalty. There was, therefore, no question of the department having to hold an enquiry and then only to decide not to promote the appellant to the higher post. Again no question of breach of the principles of natural justice arises in such a situation.The appellant also cannot challenge his non-promotion on the ground of seniority alone. It appears that the post of a Member was declared to be a selection post by the President as early as 1952. That decision is evidenced by the letter dated March 15, 1952, Appendix III to the counter-affidavit of the respondents in Writ Petition No. 608/D of 1966. By rules made by the President under Art. 309, dated November 6, 1965, the post of the Member along with certain other posts was once again declared to be a selection post. The respondents counter-affidavit clearly affirms that the post was a selection post and that when Aswathi was appointed to that post in December 1964. the selection made from amongst the candidates was on an all India basis and not on the footing that the post was one where appointment was to be made on the basis of seniority in the Department alone. The appellant has not shown that the statement in the said letter of March 15, 1952 that the President bad declared the post of Member a selection post was not correct or that that declaration was not under Art. 309. For such a challenge the burden of proof was upon him, a burden which he has not discharged. We are, therefore, bound on the material brought by him on record to proceed on the footing that the post of a Member was a selection post since 1952, and therefore, the fact of his being the senior most amongst the directors in the department did not by itself entitle him to beappellants contention that Aswath ought not to have been appointed first to the post of Director (Selection Grade) and then as a Member as there were allegations of financial irregularities against him was denied by the respondents. The contention involves questions of disputed facts. We do not think that the circumstances of the present case make it necessary for us to undertake the task of inquiring into such disputed facts which require leading considerable additional evidence by both the parties. But assuming that there were allegations made against that officer, both the Promotion Committee and the Public Service Commission were competent to take that fact into consideration and assess its worth. On the materials on record we can hardly be called upon to arrive at any such assessment and substitute our opinion in place of theirs. We cannot consequently accede to the appellants contention that his non-promotion to the aforesaid superior posts or either of them was vitiated for any of the reasons advanced by him.On the question of non-promotion, the appellant had demanded disclosure of the proceedings before the Promotion Committee, which demand was resisted by the respondents by claiming privilege. In our opinion it is not necessary to go in this case into the vexed question of privilege, firstly, because the demand for disclosure was in the nature of a fishing inquiry into the papers relating to the proceedings of that Committee, and secondly, because the adverse confidential reports, which, according to the appellant, were responsible for the Committees refusal to recommend his name, were communicated to the appellant and have been produced by him. The demand for disclosure of those proceedings, therefore, cannot be entertained as a bona fideaffidavit in reply by the respondents, dated February 6, 1968, in clear terms avers that before passing the impugned order the appropriate authority, in accordance with the said Office Memorandum of the Ministry of Home Affairs, reviewed the case of the appellant and came to the conclusion that it was in public interest that he should be compulsorily retired on his attaining fifty-five Vears of age. The affidavit also avers that the appropriate authority had "carefully considered all relevant factors relating to the case of the petitioner (the appellant) and came to the definite opinion that it was not in the public interest to retain the petitioner in service beyond the date on which he attained the age of fifty-five years." In their reply-affidavit, dated July, 10, 1967, in *.P. 1550 of 1967 it is further stated that before the said decision was reached, the appellants entire service record was considered including his confidential reports, that where such reports were adverse they had been earlier communicated to him from time to time, that the appellant had made representations against them to the competent authority and even personal interviews before superior officers had been granted to him to vindicate his point of view. It was after all this had been done and the confidential reports had remained unaltered that the appropriate authority considered his entire record of service and then reached the conclusion that F. R. 56(j) should be resorted to. It may well be that in spite of the work of the appellant being satisfactory. as he claimed it was, there may have been other relevant factors, such as the history of the appellants entire service and confidential reports throughout the period of his service, upon which the appropriate authority may still decide to order appellants retirement under F. R. 56(j). Further, there is nothing to show that the impugned order was not in public interest. As aforesaid, Col J. N. Sinhas case([1971] 1 S. C. R. 791.) clearly lays down that the question as to the correctness of such a decision by the appropriate authority, provided it is bona fide, would not be gone into by this Court. We have already negatived the plea of mala fides raised by the appellant.Consequently, a plea of lack of bona fides can hardly be entertained. Likewise, the plea that the appropriate authority had not applied its mind must also fail in view of the clear averments made in that regard in the affidavits cited earlier, no reason having been adequately shown to discard those statements as untrue or otherwise unbelievable. That being the position, we are constrained to come to the conclusion that the appellant has-failed to make out his case in any one of his three writ petitions. | 0 | 7,839 | 2,159 | ### Instruction:
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such authority must take necessary action to serve three months notice in terms of cl. (j) of F. R. 56. That the requisite notice in terms of cl. (i) of F.R. 56 was served on the appellant is not in dispute. In Union of India v. Col. J. N. Sinha ([1971] 1 S.C.R. 791.) this Court stated that F. R. 56(j) in express terms confers on the appropriate authority an absolute right to retire a Government servant on his attaining the age of 55 years if such authority is of the opinion that it is in public interest so to do. The decision further states."If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an agrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision."The appellant relied on Moti Ram Deka v. General Manager, N.E.F. Railways ([1964] 5 S.C.R. 587.) where rules 148 (3) and 149 (3) of the Indian Railway Establishment Code were held to contravene Art. 311 (2), and therefore, invalid. That decision cannot apply to the present case as the rules there in question dealt with the right to terminate service on notice of a prescribed period. The Court there held that a rule cannot confer on the Railway administration power to terminate service while at the same time laying down the age, of superannuation so as to be in contravention of the provisions of Art. 311(2). Similarly, in Gurdev Singh Sidhu v. Punjab([1964] 57 S.C.R. 587.) a rule conferring an absolute right to retire a Government servant after he had completed ten years of qualifying service, though providing that such power shall not be exercised except when it is in public interest, was struck down as contravening Art. 311(2). The Court, however, held that there were two valid exceptions to the protection afforded by Art. 3 11 (2). These were (1) where a permanent public servant was asked to retire on the ground that he had reached the age of superannuation which was reasonably fixed, and (2) that he was compulsorily retired under the rules which prescribed the normal age of superannuation and provided a reasonably long period of qualifying service after which alone compulsory retirement could be ordered. The first would not amount to dismissal or removal from service within Art. 311(2) and the second would be justified by the view taken by this Court in a long series of decisions. In T. C. Shivacharana Singh v. Mysore, (A.I.R. 1965 S.C. 280.) rule 255 of the Mysore Civil Services Rules, 1958 conferring power on Government to retire compulsorily a Government servant in public interest on his completing twenty-five years of qualifying service or attaining fifty years of age, though the age of normal superannuation under r. 95 (a) was fixed at fifty-five years, was upheld on the ground that the rule laid down a reasonably long period of qualifying service. (See Takhatrav Shivdatrai Mankad v. Gujarat, ([1969] (2) S.C.C. 120.) particularly the observations at p. 123).Since the question of validity of such a rule has thus been concluded, such a challenge is no longer available to the appellant.13. The affidavit in reply by the respondents, dated February 6, 1968, in clear terms avers that before passing the impugned order the appropriate authority, in accordance with the said Office Memorandum of the Ministry of Home Affairs, reviewed the case of the appellant and came to the conclusion that it was in public interest that he should be compulsorily retired on his attaining fifty-five Vears of age. The affidavit also avers that the appropriate authority had "carefully considered all relevant factors relating to the case of the petitioner (the appellant) and came to the definite opinion that it was not in the public interest to retain the petitioner in service beyond the date on which he attained the age of fifty-five years." In their reply-affidavit, dated July, 10, 1967, in *.P. 1550 of 1967 it is further stated that before the said decision was reached, the appellants entire service record was considered including his confidential reports, that where such reports were adverse they had been earlier communicated to him from time to time, that the appellant had made representations against them to the competent authority and even personal interviews before superior officers had been granted to him to vindicate his point of view. It was after all this had been done and the confidential reports had remained unaltered that the appropriate authority considered his entire record of service and then reached the conclusion that F. R. 56(j) should be resorted to. It may well be that in spite of the work of the appellant being satisfactory. as he claimed it was, there may have been other relevant factors, such as the history of the appellants entire service and confidential reports throughout the period of his service, upon which the appropriate authority may still decide to order appellants retirement under F. R. 56(j). Further, there is nothing to show that the impugned order was not in public interest. As aforesaid, Col J. N. Sinhas case([1971] 1 S. C. R. 791.) clearly lays down that the question as to the correctness of such a decision by the appropriate authority, provided it is bona fide, would not be gone into by this Court. We have already negatived the plea of mala fides raised by the appellant.Consequently, a plea of lack of bona fides can hardly be entertained. Likewise, the plea that the appropriate authority had not applied its mind must also fail in view of the clear averments made in that regard in the affidavits cited earlier, no reason having been adequately shown to discard those statements as untrue or otherwise unbelievable. That being the position, we are constrained to come to the conclusion that the appellant has-failed to make out his case in any one of his three writ petitions.
### Response:
0
### Explanation:
cannot challenge his non-promotion on the ground of seniority alone. It appears that the post of a Member was declared to be a selection post by the President as early as 1952. That decision is evidenced by the letter dated March 15, 1952, Appendix III to the counter-affidavit of the respondents in Writ Petition No. 608/D of 1966. By rules made by the President under Art. 309, dated November 6, 1965, the post of the Member along with certain other posts was once again declared to be a selection post. The respondents counter-affidavit clearly affirms that the post was a selection post and that when Aswathi was appointed to that post in December 1964. the selection made from amongst the candidates was on an all India basis and not on the footing that the post was one where appointment was to be made on the basis of seniority in the Department alone. The appellant has not shown that the statement in the said letter of March 15, 1952 that the President bad declared the post of Member a selection post was not correct or that that declaration was not under Art. 309. For such a challenge the burden of proof was upon him, a burden which he has not discharged. We are, therefore, bound on the material brought by him on record to proceed on the footing that the post of a Member was a selection post since 1952, and therefore, the fact of his being the senior most amongst the directors in the department did not by itself entitle him to beappellants contention that Aswath ought not to have been appointed first to the post of Director (Selection Grade) and then as a Member as there were allegations of financial irregularities against him was denied by the respondents. The contention involves questions of disputed facts. We do not think that the circumstances of the present case make it necessary for us to undertake the task of inquiring into such disputed facts which require leading considerable additional evidence by both the parties. But assuming that there were allegations made against that officer, both the Promotion Committee and the Public Service Commission were competent to take that fact into consideration and assess its worth. On the materials on record we can hardly be called upon to arrive at any such assessment and substitute our opinion in place of theirs. We cannot consequently accede to the appellants contention that his non-promotion to the aforesaid superior posts or either of them was vitiated for any of the reasons advanced by him.On the question of non-promotion, the appellant had demanded disclosure of the proceedings before the Promotion Committee, which demand was resisted by the respondents by claiming privilege. In our opinion it is not necessary to go in this case into the vexed question of privilege, firstly, because the demand for disclosure was in the nature of a fishing inquiry into the papers relating to the proceedings of that Committee, and secondly, because the adverse confidential reports, which, according to the appellant, were responsible for the Committees refusal to recommend his name, were communicated to the appellant and have been produced by him. The demand for disclosure of those proceedings, therefore, cannot be entertained as a bona fideaffidavit in reply by the respondents, dated February 6, 1968, in clear terms avers that before passing the impugned order the appropriate authority, in accordance with the said Office Memorandum of the Ministry of Home Affairs, reviewed the case of the appellant and came to the conclusion that it was in public interest that he should be compulsorily retired on his attaining fifty-five Vears of age. The affidavit also avers that the appropriate authority had "carefully considered all relevant factors relating to the case of the petitioner (the appellant) and came to the definite opinion that it was not in the public interest to retain the petitioner in service beyond the date on which he attained the age of fifty-five years." In their reply-affidavit, dated July, 10, 1967, in *.P. 1550 of 1967 it is further stated that before the said decision was reached, the appellants entire service record was considered including his confidential reports, that where such reports were adverse they had been earlier communicated to him from time to time, that the appellant had made representations against them to the competent authority and even personal interviews before superior officers had been granted to him to vindicate his point of view. It was after all this had been done and the confidential reports had remained unaltered that the appropriate authority considered his entire record of service and then reached the conclusion that F. R. 56(j) should be resorted to. It may well be that in spite of the work of the appellant being satisfactory. as he claimed it was, there may have been other relevant factors, such as the history of the appellants entire service and confidential reports throughout the period of his service, upon which the appropriate authority may still decide to order appellants retirement under F. R. 56(j). Further, there is nothing to show that the impugned order was not in public interest. As aforesaid, Col J. N. Sinhas case([1971] 1 S. C. R. 791.) clearly lays down that the question as to the correctness of such a decision by the appropriate authority, provided it is bona fide, would not be gone into by this Court. We have already negatived the plea of mala fides raised by the appellant.Consequently, a plea of lack of bona fides can hardly be entertained. Likewise, the plea that the appropriate authority had not applied its mind must also fail in view of the clear averments made in that regard in the affidavits cited earlier, no reason having been adequately shown to discard those statements as untrue or otherwise unbelievable. That being the position, we are constrained to come to the conclusion that the appellant has-failed to make out his case in any one of his three writ petitions.
|
Union Of India Vs. K.P. Singh | 6th Pay Commission has not expressly recommended application of DACP Scheme to Commissioned Officers in AMC Cadre, as can be discerned from the said report itself. While it has limited that recommendation to civilian employees it has not done so to doctors generally.13. Reverting to the decision of the Tribunal in the case of Col. Sanjeev Sehgal (supra), in our opinion, the observation made therein will have to be construed in the context of the final direction issued to the Department. The authorities were directed to issue instructions for the implementation of DACP scheme in the light of Annexure A-1, A-2 and A-3 attached with the Original Application within three months from the date of receipt of copy of the order. That direction will have to be construed to mean that the authorities must act in accordance with law and extend DACP scheme even to the Commissioned Officers of AMC Cadre, if permissible in law. No more and no less. Therefore, this Court whilst dismissing the Civil Appeal on 23rd September 2011 observed that no substantial question of law of general/public importance arises for consideration. That decision cannot be given an expansive meaning so as to be read that de-hors the legal position, DACP scheme be extended even to doctors working as Commissioned Officers in AMC Cadre. Thus understood, it must follow that the issues raised in the present appeals by the Government and in particular by the Ministry of Defence are not concluded nor have they attained finality. On this finding, it may not be necessary for us to dilate on the possibility of an inaccurate reply affidavit having been filed before the Tribunal to oppose the Original Application of Col. Sanjeev Sehgal or for that matter the circumstances in which the appropriate Authority was inclined to implement DACP scheme qua Commissioned Officers in Armed Forces. It is possible that office note in that behalf was prepared on an erroneous assumption that the Court has directed that the DACP scheme be implemented even in the case of doctors working as Commissioned Officers in Armed Forces. We, however, leave it open to the department to proceed against the concerned officers who were responsible for creating such confusion and for filing an inaccurate affidavit and for not bringing on record entire material relevant for deciding the principal question about the entitlement of doctors working as Commissioned Officers in AMC Cadre to receive DACP.14. The next question is: whether this Court should itself examine the gamut of arguments regarding applicability of DACP Scheme even to Doctors serving as Commissioned Officers in AMC Cadre. Indeed, the entire material has now been placed before us, on the basis of which, it may be possible to answer the matters in issue. The appellants have relied on the Office Memorandum dated 29th August, 2008 issued by the Ministry of Finance and the resolution issued by the Ministry of Defence dated 30th August, 2008. The former Office Memorandum including the Office Noting on the file at different levels, prima facie, indicates that there was a clear exclusion of applicability of DACP Scheme to Doctors working as Commissioned Officers in AMC Cadre. In addition, our attention has been invited to the reference made to the 6th Pay Commission and the specific recommendation made by the 6th Pay Commission for civilian doctors and separate recommendations for the Commissioned Officers of AMC Cadre. Since the Tribunal has not either in the case of Col. Sanjeev Sehgal (supra) or in the impugned decision examined all these aspects on its merits, we deem it appropriate to relegate the parties before the Tribunal for reconsideration of the entire matter afresh without being influenced by the observations made in the order passed in case of Col. Sanjeev Sehgal (supra) or the dismissal of appeal against that decision by this Court on 23rd September, 2011. We say so because we are of the considered opinion that the direction issued by the Tribunal in the case of Col. Sanjeev Sehgal (supra) to the Department for issuing instructions was obviously to decide the issue under consideration in accordance with law, on the question of applicability of DACP Scheme even to the Doctors working as Commissioned Officers in AMC Cadre. As noted in the earlier part of the judgment, controversy has far-reaching structural ramifications to the Armed Forces besides financial implications and the possibility of a discrimination within the cadre if additional benefit was to be given only to Doctors working as Commissioned Officers in AMC Cadre and not to other Commissioned Officers working on the same rank. This requires deeper consideration. For that reason, this Court during the pendency of these appeals had permitted the appropriate authority to examine the entire matter and take a necessary decision. Pursuant to that liberty, the Deputy Secretary (Medical) of the Ministry of Defence, Government of India, has informed of the decision of the Government vide communication dated 13th January, 2016 to the Chairman, Chiefs of Staff Committee (COSC). It would be open to the original applicants (respondents in the appeals) to question the correctness thereof in the remanded proceedings. This would provide an opportunity to both sides to pursue their pleas and also facilitate the Tribunal to examine the correctness of the position and answer the matters in issue appropriately.15. For the nature of order we propose to pass, it is unnecessary to dilate further on the other contentions. To do substantial and complete justice to the parties, we leave all questions on merits open to be considered by the Tribunal in the first instance. In other words, we are not inclined to accept the grievance of the respondents in the appeals that the appellants should not be permitted to rely on new documents which were not part of the record before the Tribunal or for that matter incorrect declaration and affidavit filed in support of the present appeals. Instead, we give liberty to both sides to file further pleadings and place on record any further documents before the Tribunal. | 1[ds]10. The moot question for our consideration is: whetherthe medical doctors serving as Commissioned Officers in Armed Forces are covered by the Ministry ofResolution dated 30th August 2008 or Ministry ofResolution dated 29th August 2008?t issue is conclusively answered by the Tribunal in Col.case (supra)? The decision of the Tribunal as upheld by this Court in the case of Col. Sanjeev Sehgal (supra), was in the context of the relief claimed for implementation of the Dynamic Assured Career Progression Scheme (DACP) as approved by the Central Government. In that case reliance was placed on para 3 of the Office Memorandum bearing No.F.No.A-45012/2/08-CH-V dated 29th October 2008 issued by the Ministry of Health and Family Welfare, Government of India. The said proceeding was contested by the department. The Tribunal noted the contents of the reply filed by the Department to oppose the said Original Application, wherein it was admitted that Government of India, Ministry of Health and Family Welfare has implemented the DACP Scheme in respect of Officers of Central Health Services and Medical/Dental Doctors in Central Government respectively. The Tribunal also noted the stand taken by the Department that the said scheme in Defence has not been implemented and the matter is under consideration at various levels before military authorities and depending on the decision to be taken at the appropriate level, necessary orders will be passed in due course. After having noticed this contention of the department, the Tribunal disposed of the Original Application vide order dated 18th July 2011, the relevant portion whereof has been extracted in the opening part of this judgment. That decision was challenged before this Court by way of Civil Appeal D.No.1434/2013, which was dismissed at the preliminary hearing stage on 23rd September 2013. The order passed by this Court has also been extracted hereinabove.11. On a fair reading of the said decision of the Tribunal dated 18th July 2011, all that it records is that there was no denial that the DACP scheme is equally applicable to AMC Cadre. Further, the Scheme has already been implemented in civil departments except in the Armed Forces. On that basis, the Tribunal issued a direction to the Department to issue instructions for implementation of the DACP Scheme in the light of the Office Memorandum dated 29th October 2008 issued by the Ministry of Health & Family Welfare, dated 18th November 2008 issued by the Ministry of Finance and dated 27th November 2008 issued by the Ministry of Defence.In that, the correct factual position was not brought to the notice of the Tribunal and also this Court, in the Civil Appeal filed before this Court against the decision of the Tribunal. Nevertheless, considering the far reaching financial and structural ramifications for the Defence Forces and in larger public interest, it is essential to examine the core issue about the applicability of DACP Scheme to Commissioned Officers of Armed Forces. It is submitted that the department intends to proceed against the officials responsible for filing such inaccurate and deficient pleadings – which entailed in recording a finding that there was no denial that the DACP scheme is equally applicable to AMC Cadre. There is ample contemporaneous record to indicate that the Scheme was made applicable only to Civilian Doctors and not to Commissioned Officers serving in AMC Cadre. It is not a case of the department approbating and reprobating, but a case of an inaccurate plea being taken before the Tribunal which led to the said finding. If the officials responsible for filing such pleadings, in the departmental action are found to have done it intentionally, it would be a case bordering on fraud. The recommendation made in respect of the DACP scheme by the 6th Pay Commission was limited to Civilian Doctors (not in respect of Commissioned Officers in three Services). Besides the resolution passed by the Ministry of Finance dated 29th August 2008, bearing No.1/1/08-IC made it explicit that DACP scheme was applicable only in respect of civilian employees in the organized and unorganized sectors employed by the Central Government as also in the All India Services and to Chairpersons or Members of regulatory bodies. Besides the said resolution, the Ministry of Finance, Department of Expenditure, Implementation Cell on 29th August 2008 vide its communication made it amply clear to the Ministry of Defence that the proposal regarding implementation of the Government decision of pay revision qua Officers of Armed Forces for grant of DACP to Doctors who are Commissioned Officers in AMC Cadre has been deleted as the same is not applicable to the Doctors in the Defence Forces. The Ministry of Defence accordingly, on 30th August 2008 issued a resolution extending the benefits of other allowances (other than DACP) for the Commissioned Officers in three Services as recommended by the 6th Pay Commission and approved by the Government. In other words, the appropriate authority had consciously not extended the benefit of DACP Scheme to Doctors who were Commissioned Officers in AMC Cadre.13. Reverting to the decision of the Tribunal in the case of Col. Sanjeev Sehgal (supra), in our opinion, the observation made therein will have to be construed in the context of the final direction issued to the Department. The authorities were directed to issue instructions for the implementation of DACP scheme in the light of Annexure A-1, A-2 and A-3 attached with the Original Application within three months from the date of receipt of copy of the order. That direction will have to be construed to mean that the authorities must act in accordance with law and extend DACP scheme even to the Commissioned Officers of AMC Cadre, if permissible in law. No more and no less. Therefore, this Court whilst dismissing the Civil Appeal on 23rd September 2011 observed that no substantial question of law of general/public importance arises for consideration. That decision cannot be given an expansive meaning so as to be read that de-hors the legal position, DACP scheme be extended even to doctors working as Commissioned Officers in AMC Cadre. Thus understood, it must follow that the issues raised in the present appeals by the Government and in particular by the Ministry of Defence are not concluded nor have they attained finality. On this finding, it may not be necessary for us to dilate on the possibility of an inaccurate reply affidavit having been filed before the Tribunal to oppose the Original Application of Col. Sanjeev Sehgal or for that matter the circumstances in which the appropriate Authority was inclined to implement DACP scheme qua Commissioned Officers in Armed Forces. It is possible that office note in that behalf was prepared on an erroneous assumption that the Court has directed that the DACP scheme be implemented even in the case of doctors working as Commissioned Officers in Armed Forces. We, however, leave it open to the department to proceed against the concerned officers who were responsible for creating such confusion and for filing an inaccurate affidavit and for not bringing on record entire material relevant for deciding the principal question about the entitlement of doctors working as Commissioned Officers in AMC Cadre to receive DACP.14. The next question is:this Court should itself examine the gamut of arguments regarding applicability of DACP Scheme even to Doctors serving as Commissioned Officers in AMCCadre. Indeed, the entire material has now been placed before us, on the basis of which, it may be possible to answer the matters in issue. The appellants have relied on the Office Memorandum dated 29th August, 2008 issued by the Ministry of Finance and the resolution issued by the Ministry of Defence dated 30th August, 2008. The former Office Memorandum including the Office Noting on the file at different levels, prima facie, indicates that there was a clear exclusion of applicability of DACP Scheme to Doctors working as Commissioned Officers in AMC Cadre. In addition, our attention has been invited to the reference made to the 6th Pay Commission and the specific recommendation made by the 6th Pay Commission for civilian doctors and separate recommendations for the Commissioned Officers of AMC Cadre. Since the Tribunal has not either in the case of Col. Sanjeev Sehgal (supra) or in the impugned decision examined all these aspects on its merits, we deem it appropriate to relegate the parties before the Tribunal for reconsideration of the entire matter afresh without being influenced by the observations made in the order passed in case of Col. Sanjeev Sehgal (supra) or the dismissal of appeal against that decision by this Court on 23rd September, 2011. We say so because we are of the considered opinion that the direction issued by the Tribunal in the case of Col. Sanjeev Sehgal (supra) to the Department for issuing instructions was obviously to decide the issue under consideration in accordance with law, on the question of applicability of DACP Scheme even to the Doctors working as Commissioned Officers in AMC Cadre. As noted in the earlier part of the judgment, controversy has far-reaching structural ramifications to the Armed Forces besides financial implications and the possibility of a discrimination within the cadre if additional benefit was to be given only to Doctors working as Commissioned Officers in AMC Cadre and not to other Commissioned Officers working on the same rank. This requires deeper consideration. For that reason, this Court during the pendency of these appeals had permitted the appropriate authority to examine the entire matter and take a necessary decision. Pursuant to that liberty, the Deputy Secretary (Medical) of the Ministry of Defence, Government of India, has informed of the decision of the Government vide communication dated 13th January, 2016 to the Chairman, Chiefs of Staff Committee (COSC). It would be open to the original applicants (respondents in the appeals) to question the correctness thereof in the remanded proceedings. This would provide an opportunity to both sides to pursue their pleas and also facilitate the Tribunal to examine the correctness of the position and answer the matters in issue appropriately.15. For the nature of order we propose to pass, it is unnecessary to dilate further on the other contentions. To do substantial and complete justice to the parties, we leave all questions on merits open to be considered by the Tribunal in the first instance. In other words, we are not inclined to accept the grievance of the respondents in the appeals that the appellants should not be permitted to rely on new documents which were not part of the record before the Tribunal or for that matter incorrect declaration and affidavit filed in support of the present appeals. Instead, we give liberty to both sides to file further pleadings and place on record any further documents before the Tribunal. | 1 | 8,378 | 1,923 | ### 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:
6th Pay Commission has not expressly recommended application of DACP Scheme to Commissioned Officers in AMC Cadre, as can be discerned from the said report itself. While it has limited that recommendation to civilian employees it has not done so to doctors generally.13. Reverting to the decision of the Tribunal in the case of Col. Sanjeev Sehgal (supra), in our opinion, the observation made therein will have to be construed in the context of the final direction issued to the Department. The authorities were directed to issue instructions for the implementation of DACP scheme in the light of Annexure A-1, A-2 and A-3 attached with the Original Application within three months from the date of receipt of copy of the order. That direction will have to be construed to mean that the authorities must act in accordance with law and extend DACP scheme even to the Commissioned Officers of AMC Cadre, if permissible in law. No more and no less. Therefore, this Court whilst dismissing the Civil Appeal on 23rd September 2011 observed that no substantial question of law of general/public importance arises for consideration. That decision cannot be given an expansive meaning so as to be read that de-hors the legal position, DACP scheme be extended even to doctors working as Commissioned Officers in AMC Cadre. Thus understood, it must follow that the issues raised in the present appeals by the Government and in particular by the Ministry of Defence are not concluded nor have they attained finality. On this finding, it may not be necessary for us to dilate on the possibility of an inaccurate reply affidavit having been filed before the Tribunal to oppose the Original Application of Col. Sanjeev Sehgal or for that matter the circumstances in which the appropriate Authority was inclined to implement DACP scheme qua Commissioned Officers in Armed Forces. It is possible that office note in that behalf was prepared on an erroneous assumption that the Court has directed that the DACP scheme be implemented even in the case of doctors working as Commissioned Officers in Armed Forces. We, however, leave it open to the department to proceed against the concerned officers who were responsible for creating such confusion and for filing an inaccurate affidavit and for not bringing on record entire material relevant for deciding the principal question about the entitlement of doctors working as Commissioned Officers in AMC Cadre to receive DACP.14. The next question is: whether this Court should itself examine the gamut of arguments regarding applicability of DACP Scheme even to Doctors serving as Commissioned Officers in AMC Cadre. Indeed, the entire material has now been placed before us, on the basis of which, it may be possible to answer the matters in issue. The appellants have relied on the Office Memorandum dated 29th August, 2008 issued by the Ministry of Finance and the resolution issued by the Ministry of Defence dated 30th August, 2008. The former Office Memorandum including the Office Noting on the file at different levels, prima facie, indicates that there was a clear exclusion of applicability of DACP Scheme to Doctors working as Commissioned Officers in AMC Cadre. In addition, our attention has been invited to the reference made to the 6th Pay Commission and the specific recommendation made by the 6th Pay Commission for civilian doctors and separate recommendations for the Commissioned Officers of AMC Cadre. Since the Tribunal has not either in the case of Col. Sanjeev Sehgal (supra) or in the impugned decision examined all these aspects on its merits, we deem it appropriate to relegate the parties before the Tribunal for reconsideration of the entire matter afresh without being influenced by the observations made in the order passed in case of Col. Sanjeev Sehgal (supra) or the dismissal of appeal against that decision by this Court on 23rd September, 2011. We say so because we are of the considered opinion that the direction issued by the Tribunal in the case of Col. Sanjeev Sehgal (supra) to the Department for issuing instructions was obviously to decide the issue under consideration in accordance with law, on the question of applicability of DACP Scheme even to the Doctors working as Commissioned Officers in AMC Cadre. As noted in the earlier part of the judgment, controversy has far-reaching structural ramifications to the Armed Forces besides financial implications and the possibility of a discrimination within the cadre if additional benefit was to be given only to Doctors working as Commissioned Officers in AMC Cadre and not to other Commissioned Officers working on the same rank. This requires deeper consideration. For that reason, this Court during the pendency of these appeals had permitted the appropriate authority to examine the entire matter and take a necessary decision. Pursuant to that liberty, the Deputy Secretary (Medical) of the Ministry of Defence, Government of India, has informed of the decision of the Government vide communication dated 13th January, 2016 to the Chairman, Chiefs of Staff Committee (COSC). It would be open to the original applicants (respondents in the appeals) to question the correctness thereof in the remanded proceedings. This would provide an opportunity to both sides to pursue their pleas and also facilitate the Tribunal to examine the correctness of the position and answer the matters in issue appropriately.15. For the nature of order we propose to pass, it is unnecessary to dilate further on the other contentions. To do substantial and complete justice to the parties, we leave all questions on merits open to be considered by the Tribunal in the first instance. In other words, we are not inclined to accept the grievance of the respondents in the appeals that the appellants should not be permitted to rely on new documents which were not part of the record before the Tribunal or for that matter incorrect declaration and affidavit filed in support of the present appeals. Instead, we give liberty to both sides to file further pleadings and place on record any further documents before the Tribunal.
### Response:
1
### Explanation:
(other than DACP) for the Commissioned Officers in three Services as recommended by the 6th Pay Commission and approved by the Government. In other words, the appropriate authority had consciously not extended the benefit of DACP Scheme to Doctors who were Commissioned Officers in AMC Cadre.13. Reverting to the decision of the Tribunal in the case of Col. Sanjeev Sehgal (supra), in our opinion, the observation made therein will have to be construed in the context of the final direction issued to the Department. The authorities were directed to issue instructions for the implementation of DACP scheme in the light of Annexure A-1, A-2 and A-3 attached with the Original Application within three months from the date of receipt of copy of the order. That direction will have to be construed to mean that the authorities must act in accordance with law and extend DACP scheme even to the Commissioned Officers of AMC Cadre, if permissible in law. No more and no less. Therefore, this Court whilst dismissing the Civil Appeal on 23rd September 2011 observed that no substantial question of law of general/public importance arises for consideration. That decision cannot be given an expansive meaning so as to be read that de-hors the legal position, DACP scheme be extended even to doctors working as Commissioned Officers in AMC Cadre. Thus understood, it must follow that the issues raised in the present appeals by the Government and in particular by the Ministry of Defence are not concluded nor have they attained finality. On this finding, it may not be necessary for us to dilate on the possibility of an inaccurate reply affidavit having been filed before the Tribunal to oppose the Original Application of Col. Sanjeev Sehgal or for that matter the circumstances in which the appropriate Authority was inclined to implement DACP scheme qua Commissioned Officers in Armed Forces. It is possible that office note in that behalf was prepared on an erroneous assumption that the Court has directed that the DACP scheme be implemented even in the case of doctors working as Commissioned Officers in Armed Forces. We, however, leave it open to the department to proceed against the concerned officers who were responsible for creating such confusion and for filing an inaccurate affidavit and for not bringing on record entire material relevant for deciding the principal question about the entitlement of doctors working as Commissioned Officers in AMC Cadre to receive DACP.14. The next question is:this Court should itself examine the gamut of arguments regarding applicability of DACP Scheme even to Doctors serving as Commissioned Officers in AMCCadre. Indeed, the entire material has now been placed before us, on the basis of which, it may be possible to answer the matters in issue. The appellants have relied on the Office Memorandum dated 29th August, 2008 issued by the Ministry of Finance and the resolution issued by the Ministry of Defence dated 30th August, 2008. The former Office Memorandum including the Office Noting on the file at different levels, prima facie, indicates that there was a clear exclusion of applicability of DACP Scheme to Doctors working as Commissioned Officers in AMC Cadre. In addition, our attention has been invited to the reference made to the 6th Pay Commission and the specific recommendation made by the 6th Pay Commission for civilian doctors and separate recommendations for the Commissioned Officers of AMC Cadre. Since the Tribunal has not either in the case of Col. Sanjeev Sehgal (supra) or in the impugned decision examined all these aspects on its merits, we deem it appropriate to relegate the parties before the Tribunal for reconsideration of the entire matter afresh without being influenced by the observations made in the order passed in case of Col. Sanjeev Sehgal (supra) or the dismissal of appeal against that decision by this Court on 23rd September, 2011. We say so because we are of the considered opinion that the direction issued by the Tribunal in the case of Col. Sanjeev Sehgal (supra) to the Department for issuing instructions was obviously to decide the issue under consideration in accordance with law, on the question of applicability of DACP Scheme even to the Doctors working as Commissioned Officers in AMC Cadre. As noted in the earlier part of the judgment, controversy has far-reaching structural ramifications to the Armed Forces besides financial implications and the possibility of a discrimination within the cadre if additional benefit was to be given only to Doctors working as Commissioned Officers in AMC Cadre and not to other Commissioned Officers working on the same rank. This requires deeper consideration. For that reason, this Court during the pendency of these appeals had permitted the appropriate authority to examine the entire matter and take a necessary decision. Pursuant to that liberty, the Deputy Secretary (Medical) of the Ministry of Defence, Government of India, has informed of the decision of the Government vide communication dated 13th January, 2016 to the Chairman, Chiefs of Staff Committee (COSC). It would be open to the original applicants (respondents in the appeals) to question the correctness thereof in the remanded proceedings. This would provide an opportunity to both sides to pursue their pleas and also facilitate the Tribunal to examine the correctness of the position and answer the matters in issue appropriately.15. For the nature of order we propose to pass, it is unnecessary to dilate further on the other contentions. To do substantial and complete justice to the parties, we leave all questions on merits open to be considered by the Tribunal in the first instance. In other words, we are not inclined to accept the grievance of the respondents in the appeals that the appellants should not be permitted to rely on new documents which were not part of the record before the Tribunal or for that matter incorrect declaration and affidavit filed in support of the present appeals. Instead, we give liberty to both sides to file further pleadings and place on record any further documents before the Tribunal.
|
Vasant Rao And Another Vs. Shyamrao And Ors | of more than seven members, any action for the winding up such a partnership must be in accordance with the procedure prescribed for that purpose in the Companies A ct, and the suit instituted in the court of the Senior Civil Judge was not maintainable. Part X of the Companies Act includes sections 582 to 590. Section 582 defines the expression "unregistered company" as follows:"Meaning of "unregistered Company"."unregistered company(a) shall not include-(i) a railway company incorporated by any Act of Parliament or other Indian law or any Act of Parliament o f the United Kingdom;(ii)a company registered under this Act; or(iii) a company registered under any previous companies law and not being a company the registered office whereof was in Burma , Aden or Pakistan immediately before the separation of that country from India; and(b) save as aforesaid, shall include any partnership association or company consisting of more than seven members at the time when the petition for winding up the partnership, association or company as the case may be, is presented before the Court."2. It is not disputed that the partnership in question h ad more than seven members at the time when the suit was instituted. This was therefore an "unregistered company" as defined in section 582(b). Section 583(1) states that subject to the provisions of this Part, any unregistered company may, be wound up under this Act, and all the provisions of this Act with respect to winding up shall apply to an unregistered company, with the exceptions and additions mentioned in subsections (2) to (5)". It is not necessary to refer in any great detail to these sub-sections except to point out that sub-section (4) mentions the circumstances in which an unregistered company may be wound up, and one of the circumstances is that the company has been dissolved. It may also be stated that under subsection (3) no unregistered company can be wound up under this Act voluntarily or subject to the supervision of the court and can only be wound up by the court. Admittedly this is not a case of voluntary winding up or winding up subject to the supervision of the court. Chapter VI of, , the Indian Partnership Act, 1932 also contains provisions for the dissolution of a firm and its winding up on dissolution. The argument for the appellants is that the special provisions of Part X of the Companies Act exclude the operation of the general law contained in the Partnership Act in the matter of winding up of a firm having more than seven persons, and as the Civil Judge trying the suit shall have to apply the Partnership Act, the suit is not maintain- able.It is difficult to appreciate why the suit should not be maintainable at any rate in. so far as it is one, for dissolution of the firm. As already stated, one of the reliefs prayed for is a declaration that the firm stood dissolved from January 9, 1974. This is not a relief that can be claimed in a proceeding under Part X of the Companies Act which provides for the winding up of unregistered companies. However it is not necessary to consider whether the Civil Judge had jurisdiction to entertain some of the claims made in the suit, because section 590 of the Companies Act makes it clear that Part X of the Act does not affect the operation of the Indian Partnership Ac t. Section 590 states Saving and construction of enactments conferring power to wind up partnership, association or company in certain cases :"Nothing in this Part shall affect the operation of any enactment which provides for any partnership, association or company being wound up, or being wound up as a company or as an unregistered company, under the Indian Companies Act, 1913 or any Act repealed by that Act:Provided that references in any such enactment to any provision contained in the Indian Companies Act, 1913 or in any Act repealed by that Act shall be read as references to the corresponding provision, if any contained in this Act."3. As the marginal note to this section indicates, this is a saving provision. It leaves unaffected the operation of any enactment (a) which provides for any partnership, association or company being wound up, or (b) which provides for any partnership, association or company being wound up as a company or as an unregistered company under the Indian Companies Act, 1913 or any Act repealed by t hat Act. An enactment means the whole Act or a part of it. The proviso which contains a rule of construction of references in any such enactment to any provision in the Indian Companies Act, 1913 or any Actress pealed by that Act is not relevant for the present purpose. It is clear that the provisions for winding up of the affairs of a firm which Chapter VI of the Indian Partnership Act contains besides provisions for the dissolution of partnership are left untouched by section 590 of the Companies Act, 1956. The cases cited in support of the respective contentions of the parties are not really on the point under consideration except the decision of the Mysore High, Court in Pattada Authayya v. Pattada Somayya and others (A.I.R. 1955 Mysore 149.), to which counsel for the appellants referred. The Mysore case contains an observation on section 271 of the Indian Companies Act, 1913 which corresponds to section 590 of the, Companies Act, 1956. The learned single Judge who decided the case held that there was nothing in section 271 or in the words "any unregistered company may be wound up" appearing in that section to indicate that the aggrieved party had an option to institute a suit for winding up of an unregistered company. This decision does not take note of sub-section (2) of section 271 which is similar to section 590 of the Companies Act, 1956 leaving unaffected the operation of other enactments providing for any partnership, association or company being wound up.4. | 0[ds]It is not necessary to refer in any great detail to these sub-sections except to point out that sub-section (4) mentions the circumstances in which an unregistered company may be wound up, and one of the circumstances is that the company has been dissolved. It may also be stated that under subsection (3) no unregistered company can be wound up under this Act voluntarily or subject to the supervision of the court and can only be wound up by the court. Admittedly this is not a case of voluntary winding up or winding up subject to the supervision of the court. Chapter VI of, ,the Indian Partnership Act, 1932 also contains provisions for the dissolution of a firm and its winding up onalready stated, one of the reliefs prayed for is a declaration that the firm stood dissolved from January 9, 1974. This is not a relief that can be claimed in a proceeding under Part X of the Companies Act which provides for the winding up of unregistered companies. However it is not necessary to consider whether the Civil Judge had jurisdiction to entertain some of the claims made in the suit, because section 590 of the Companies Act makes it clear that Part X of the Act does not affect the operation of the Indian Partnership Ac t. Section 590 states Saving and construction of enactments conferring power to wind up partnership, association or company in certainthe marginal note to this section indicates, this is a saving provision. It leaves unaffected the operation of any enactment (a) which provides for any partnership, association or company being wound up, or (b) which provides for any partnership, association or company being wound up as a company or as an unregistered company under the Indian Companies Act, 1913 or any Act repealed by t hat Act. An enactment means the whole Act or a part of it. The proviso which contains a rule of construction of references in any such enactment to any provision in the Indian Companies Act, 1913 or any Actress pealed by that Act is not relevant for the present purpose. It is clear that the provisions for winding up of the affairs of a firm which Chapter VI of the Indian Partnership Act contains besides provisions for the dissolution of partnership are left untouched by section 590 ofthe Companies Act, 1956. The cases cited in support of the respective contentions of the parties are not really on the point under consideration except the decision of the Mysore High, Court in Pattada Authayya v. Pattada Somayya and others (A.I.R. 1955 Mysore 149.), to which counsel for the appellants referred. The Mysore case contains an observation on section 271 of the Indian Companies Act, 1913 which corresponds to section 590 of the, Companies Act, 1956. The learned single Judge who decided the case held that there was nothing in section 271 or in the words "any unregistered company may be wound up" appearing in that section to indicate that the aggrieved party had an option to institute a suit for winding up of an unregistered company. This decision does not take note of sub-section (2) of section 271 which is similar to section 590 ofthe Companies Act, 1956 leaving unaffected the operation of other enactments providing for any partnership, association or company being woundis difficult to appreciate why the suit should not be maintainable at any rate in. so far as it is one, for dissolution of the firm.y stated, one of the reliefs prayed for is a declaration that the firm stood dissolved from January 9, 1974. This is not a relief that can be claimed in a proceeding under Part X of the Companies Act which provides for the winding up of unregistered companies. However it is not necessary to consider whether the Civil Judge had jurisdiction to entertain some of the claims made in the suit, because section 590 of the Companies Act makes it clear that Part X of the Act does not affect the operation of the Indian Partnership Ac t. Section 590 states Saving and construction of enactments conferring power to wind up partnership, association or company in certain | 0 | 1,355 | 759 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
of more than seven members, any action for the winding up such a partnership must be in accordance with the procedure prescribed for that purpose in the Companies A ct, and the suit instituted in the court of the Senior Civil Judge was not maintainable. Part X of the Companies Act includes sections 582 to 590. Section 582 defines the expression "unregistered company" as follows:"Meaning of "unregistered Company"."unregistered company(a) shall not include-(i) a railway company incorporated by any Act of Parliament or other Indian law or any Act of Parliament o f the United Kingdom;(ii)a company registered under this Act; or(iii) a company registered under any previous companies law and not being a company the registered office whereof was in Burma , Aden or Pakistan immediately before the separation of that country from India; and(b) save as aforesaid, shall include any partnership association or company consisting of more than seven members at the time when the petition for winding up the partnership, association or company as the case may be, is presented before the Court."2. It is not disputed that the partnership in question h ad more than seven members at the time when the suit was instituted. This was therefore an "unregistered company" as defined in section 582(b). Section 583(1) states that subject to the provisions of this Part, any unregistered company may, be wound up under this Act, and all the provisions of this Act with respect to winding up shall apply to an unregistered company, with the exceptions and additions mentioned in subsections (2) to (5)". It is not necessary to refer in any great detail to these sub-sections except to point out that sub-section (4) mentions the circumstances in which an unregistered company may be wound up, and one of the circumstances is that the company has been dissolved. It may also be stated that under subsection (3) no unregistered company can be wound up under this Act voluntarily or subject to the supervision of the court and can only be wound up by the court. Admittedly this is not a case of voluntary winding up or winding up subject to the supervision of the court. Chapter VI of, , the Indian Partnership Act, 1932 also contains provisions for the dissolution of a firm and its winding up on dissolution. The argument for the appellants is that the special provisions of Part X of the Companies Act exclude the operation of the general law contained in the Partnership Act in the matter of winding up of a firm having more than seven persons, and as the Civil Judge trying the suit shall have to apply the Partnership Act, the suit is not maintain- able.It is difficult to appreciate why the suit should not be maintainable at any rate in. so far as it is one, for dissolution of the firm. As already stated, one of the reliefs prayed for is a declaration that the firm stood dissolved from January 9, 1974. This is not a relief that can be claimed in a proceeding under Part X of the Companies Act which provides for the winding up of unregistered companies. However it is not necessary to consider whether the Civil Judge had jurisdiction to entertain some of the claims made in the suit, because section 590 of the Companies Act makes it clear that Part X of the Act does not affect the operation of the Indian Partnership Ac t. Section 590 states Saving and construction of enactments conferring power to wind up partnership, association or company in certain cases :"Nothing in this Part shall affect the operation of any enactment which provides for any partnership, association or company being wound up, or being wound up as a company or as an unregistered company, under the Indian Companies Act, 1913 or any Act repealed by that Act:Provided that references in any such enactment to any provision contained in the Indian Companies Act, 1913 or in any Act repealed by that Act shall be read as references to the corresponding provision, if any contained in this Act."3. As the marginal note to this section indicates, this is a saving provision. It leaves unaffected the operation of any enactment (a) which provides for any partnership, association or company being wound up, or (b) which provides for any partnership, association or company being wound up as a company or as an unregistered company under the Indian Companies Act, 1913 or any Act repealed by t hat Act. An enactment means the whole Act or a part of it. The proviso which contains a rule of construction of references in any such enactment to any provision in the Indian Companies Act, 1913 or any Actress pealed by that Act is not relevant for the present purpose. It is clear that the provisions for winding up of the affairs of a firm which Chapter VI of the Indian Partnership Act contains besides provisions for the dissolution of partnership are left untouched by section 590 of the Companies Act, 1956. The cases cited in support of the respective contentions of the parties are not really on the point under consideration except the decision of the Mysore High, Court in Pattada Authayya v. Pattada Somayya and others (A.I.R. 1955 Mysore 149.), to which counsel for the appellants referred. The Mysore case contains an observation on section 271 of the Indian Companies Act, 1913 which corresponds to section 590 of the, Companies Act, 1956. The learned single Judge who decided the case held that there was nothing in section 271 or in the words "any unregistered company may be wound up" appearing in that section to indicate that the aggrieved party had an option to institute a suit for winding up of an unregistered company. This decision does not take note of sub-section (2) of section 271 which is similar to section 590 of the Companies Act, 1956 leaving unaffected the operation of other enactments providing for any partnership, association or company being wound up.4.
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It is not necessary to refer in any great detail to these sub-sections except to point out that sub-section (4) mentions the circumstances in which an unregistered company may be wound up, and one of the circumstances is that the company has been dissolved. It may also be stated that under subsection (3) no unregistered company can be wound up under this Act voluntarily or subject to the supervision of the court and can only be wound up by the court. Admittedly this is not a case of voluntary winding up or winding up subject to the supervision of the court. Chapter VI of, ,the Indian Partnership Act, 1932 also contains provisions for the dissolution of a firm and its winding up onalready stated, one of the reliefs prayed for is a declaration that the firm stood dissolved from January 9, 1974. This is not a relief that can be claimed in a proceeding under Part X of the Companies Act which provides for the winding up of unregistered companies. However it is not necessary to consider whether the Civil Judge had jurisdiction to entertain some of the claims made in the suit, because section 590 of the Companies Act makes it clear that Part X of the Act does not affect the operation of the Indian Partnership Ac t. Section 590 states Saving and construction of enactments conferring power to wind up partnership, association or company in certainthe marginal note to this section indicates, this is a saving provision. It leaves unaffected the operation of any enactment (a) which provides for any partnership, association or company being wound up, or (b) which provides for any partnership, association or company being wound up as a company or as an unregistered company under the Indian Companies Act, 1913 or any Act repealed by t hat Act. An enactment means the whole Act or a part of it. The proviso which contains a rule of construction of references in any such enactment to any provision in the Indian Companies Act, 1913 or any Actress pealed by that Act is not relevant for the present purpose. It is clear that the provisions for winding up of the affairs of a firm which Chapter VI of the Indian Partnership Act contains besides provisions for the dissolution of partnership are left untouched by section 590 ofthe Companies Act, 1956. The cases cited in support of the respective contentions of the parties are not really on the point under consideration except the decision of the Mysore High, Court in Pattada Authayya v. Pattada Somayya and others (A.I.R. 1955 Mysore 149.), to which counsel for the appellants referred. The Mysore case contains an observation on section 271 of the Indian Companies Act, 1913 which corresponds to section 590 of the, Companies Act, 1956. The learned single Judge who decided the case held that there was nothing in section 271 or in the words "any unregistered company may be wound up" appearing in that section to indicate that the aggrieved party had an option to institute a suit for winding up of an unregistered company. This decision does not take note of sub-section (2) of section 271 which is similar to section 590 ofthe Companies Act, 1956 leaving unaffected the operation of other enactments providing for any partnership, association or company being woundis difficult to appreciate why the suit should not be maintainable at any rate in. so far as it is one, for dissolution of the firm.y stated, one of the reliefs prayed for is a declaration that the firm stood dissolved from January 9, 1974. This is not a relief that can be claimed in a proceeding under Part X of the Companies Act which provides for the winding up of unregistered companies. However it is not necessary to consider whether the Civil Judge had jurisdiction to entertain some of the claims made in the suit, because section 590 of the Companies Act makes it clear that Part X of the Act does not affect the operation of the Indian Partnership Ac t. Section 590 states Saving and construction of enactments conferring power to wind up partnership, association or company in certain
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National Organic Chemical Industries Limited Vs. State of Maharashtra & Others | law in this regard at great length. At the cost of repetition we may notice that these are unquestionable propositions of law. It is only their application to the facts of a given case that would resolve the controversy. The Government has formed an opinion and has made a reference satisfying itself that there is an industrial dispute in existence between the parties. Of course formation of such an opinion can be examined by the court under Article 226 of the Constitution but it certainly falls within the very limited ambit. The court cannot sit as a court of appeal or appellate authority to examine excess of jurisdiction of the appropriate Government. Unless and until the opinion is apparently without jurisdiction, in excess of jurisdiction or is based on no material as also inter alia do not satisfy the ingredients of section 10 of the Act, the court would be very reluctant to interfere in such a reference. The Legislature in its wisdom has provided special forum for settlement of an industrial dispute which is expected to be expedient and any attempt to throttle such a proceedings at the threshold has to be examined with great caution. On the one hand the petitioner company itself questioned the legality of the orders passed by the appropriate authority/forums on the complaints of the workmen in writ petitions and certain observations have come in those orders/judgments that the respondent-workmen were part and parcel of the frame work of the workmen of the petitioner company. Even if they were employed by the contractor as alleged by the company, still the labour court would have to examine the contentions of the workmen that the contract is sham and a camouflage to frustrate the legitimate claim of the workmen. The Government was obviously not competent to go into these niceties of law and evidence and then write a judgment. Such an approach would be an apparent contradiction to the concept of formation of an opinion, which is to be based on prima facie material. From the history of this case, right from the talks from the year 2002, when the company took a decision to declare closure under section 25(O) of the Act and thereafter the parties have been in continuous litigation before one authority or the other forum or court, we are really unable to appreciate the contention of the petitioner that there exists no prima facie case for reference to the industrial court. The parties are neither strangers to each other nor there is any conclusive findings recorded which has attained finality between the parties, answering the query whether there exists or not, relationship of employer-employee between the parties. This question itself has to be adjudicated upon though there is more than prima facie material before the appropriate Government to form an opinion for making a reference within the provisions of section 10 of the Act.48. Equally ill founded is the reliance placed by the learned counsel for the petitioner upon a judgment in the case of Nedungadi Bank Ltd. vs. K.P. Madhavankutty and ors, 2000 (l) LLJ 561 and Reserve Bank of India vs. Gopinath Sharma and anr, 2006 (6) SCC 221 to press the plea of delay and laches. In the present case if there is any delay it is on the part of the petitioner company. The workmen sincerely facing the prolonged litigation right from the year 2003 and some of the orders were passed in their favour while such orders were set aside by the High Court. The order of reference was made on 20th July 2006. The petitioner company in fact accepted the said order and participated in the proceedings before the labour court. They filed their reply to the statement of claim of the workmen, of course taking various objections. The parties have filed documents and now the reference is listed for recording evidence before that court. The petitioner company itself has acquiesced in the proceedings and has taken considerable time to file the present petition, which itself was instituted on 27th February 2007. There is no reasonable or proper explanation as to why the company has filed the present petition after such delay, particularly when the contention is that the action of the Government was in excess of jurisdiction vested in it under the provisions of section 10 of the Act.49. In the order passed in Complaint Nos 750 of 1997 and 622 of 1998 a definite direction was given to the petitioner company to regularize the services of the respondent-workmen at its head office and also pay them difference of wages besides restraining them from passing transfer orders and termination orders in case of the respondent-workmen. This entire proceedings would constitute more than sufficient material for expressing prima facie opinion in relation to the existence of an industrial dispute and for its appropriate reference to the court of competent jurisdiction. The record of the present petition clearly shows that there was persistent dispute between the workmen and the employer. The question in regard to the transaction being sham or otherwise has also been raised. If this court were to examine, all these questions of fact, which require proof by documentary or oral evidence, in our opinion, the court would exceed its jurisdiction under Article 226 of the Constitution of India and would practically answer the references, which have been made to the labour court in accordance with the provisions of the special statute.50. We may notice that in the case of Subhash Chand (supra), the court in fact had observed that the appropriate Government could not require the parties to produce documentary or oral evidence to satisfy the ingredients of section 10. The Government has to form an opinion, prima facie, in regard to the contents and essentials indicated in that judgment. Finding that prima facie there was material before the appropriate Government to consider the case, the Government was directed to consider the case of the workmen and make a reference in accordance with law. | 0[ds]39. In support of its contention that there existed no industrial dispute at the time of reference, the petitioner referred to the receipt dated 15th December 1998 executed in favour of M/s Sadanand Caterers allegedly by the workmen stating that they had received a sum of Rs.2910/being retrenchment compensation and notice pay.Firstly, this receipt does not say that it is in full and final settlement of all claims of the workmen. Secondly, the order passed by the appropriate authority on the complaints of the workmen, it was directed that the compensation be returned by the workmen to the employer and it had also accepted the plea that the contractors agreement with the petitioner company deserves to be looked into. It is interesting to note that the Conciliation Officer in the proceedings recorded by him on 14th December 2005 had noticed that the management had taken up a plea that the workmen were the employees of the contractor and they cannot claim reinstatement in the company. He specifically noted that "the workmen accordingly have imp leaded the contractor as a party to this proceedings and due notice was sent to the contractor regarding this proceedings but nobody on behalf of the contractor appeared before the undersigned. The demand of the workmen for reinstatement with continuity of service and all back wages was admitted in conciliation on 10.8.2005 and the demand notices were duly served on the concerned parties. Since the management has denied therelationship between them and the workmen chances of amicably settling the dispute were remote and therefore the conciliation proceedings were concluded in failure and failure was recorded on 1.9.2005.40. The above pleadings clearly show that there existed a substantial dispute between the parties which prima facie satisfying the requirements of section 10 read with section 2(k) of the Act and the said dispute was incapable of being finally decided, without proper legal adjudicationin common parlance, the expression dispute connotes a controversy, a quarrel, even a disagreement between the management and the employee or any dispute which is capable of giving rise to an industrial action within the scope of Section 2 (k) of the Act. It can hardly be contended that the dispute involved in the present petition would not be covered under this definition. The parties have been litigating before different forums either in relation to determination, closure, entitlement of wages and/or even reinstatement. All these matters were seriously contested by the parties to the lis including thefacts of the present case clearly reflect that there was not only mere apprehended dispute but there existed an actual dispute which has been the bone of contention between the parties in different proceedings and over a prolonged period of time the workmen had been asserting their right of absorption as well as wrongful termination and that there was sham and camouflage transaction between the company and the contractor being intended to frustrate their claim. This of course was denied by the petitioner company. According to them the company had closed its unit with leave and paid retrenchment compensation to the workmen and as such no dispute existed. This was the controversial bone of the contention between the parties and in view of the fact that failure report was submitted by the Conciliation Officer on 14th December 2005, adjudication by the proper forum waspetitioner company itself questioned the legality of the orders passed by the appropriate authority/forums on the complaints of the workmen in writ petitions and certain observations have come in those orders/judgments that thewere part and parcel of the frame work of the workmen of the petitioner company. Even if they were employed by the contractor as alleged by the company, still the labour court would have to examine the contentions of the workmen that the contract is sham and a camouflage to frustrate the legitimate claim of the workmen. The Government was obviously not competent to go into these niceties of law and evidence and then write a judgment. Such an approach would be an apparent contradiction to the concept of formation of an opinion, which is to be based on prima facie material. From the history of this case, right from the talks from the year 2002, when the company took a decision to declare closure under section 25(O) of the Act and thereafter the parties have been in continuous litigation before one authority or the other forum or court, we are really unable to appreciate the contention of the petitioner that there exists no prima facie case for reference to the industrial court. The parties are neither strangers to each other nor there is any conclusive findings recorded which has attained finality between the parties, answering the query whether there exists or not, relationship ofbetween the parties. This question itself has to be adjudicated upon though there is more than prima facie material before the appropriate Government to form an opinion for making a reference within the provisions of section 10 of thethe present case if there is any delay it is on the part of the petitioner company. The workmen sincerely facing the prolonged litigation right from the year 2003 and some of the orders were passed in their favour while such orders were set aside by the High Court. The order of reference was made on 20th July 2006. The petitioner company in fact accepted the said order and participated in the proceedings before the labour court. They filed their reply to the statement of claim of the workmen, of course taking various objections. The parties have filed documents and now the reference is listed for recording evidence before that court. The petitioner company itself has acquiesced in the proceedings and has taken considerable time to file the present petition, which itself was instituted on 27th February 2007. There is no reasonable or proper explanation as to why the company has filed the present petition after such delay, particularly when the contention is that the action of the Government was in excess of jurisdiction vested in it under the provisions of section 10 of the Act.49. In the order passed in Complaint Nos 750 of 1997 and 622 of 1998 a definite direction was given to the petitioner company to regularize the services of theat its head office and also pay them difference of wages besides restraining them from passing transfer orders and termination orders in case of theThis entire proceedings would constitute more than sufficient material for expressing prima facie opinion in relation to the existence of an industrial dispute and for its appropriate reference to the court of competent jurisdiction. The record of the present petition clearly shows that there was persistent dispute between the workmen and the employer. The question in regard to the transaction being sham or otherwise has also been raised. If this court were to examine, all these questions of fact, which require proof by documentary or oral evidence, in our opinion, the court would exceed its jurisdiction under Article 226 of the Constitution of India and would practically answer the references, which have been made to the labour court in accordance with the provisions of the special statute.50. We may notice that in the case of Subhash Chand (supra), the court in fact had observed that the appropriate Government could not require the parties to produce documentary or oral evidence to satisfy the ingredients of section 10. The Government has to form an opinion, prima facie, in regard to the contents and essentials indicated in that judgment. Finding that prima facie there was material before the appropriate Government to consider the case, the Government was directed to consider the case of the workmen and make a reference in accordance with law. | 0 | 13,279 | 1,365 | ### 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:
law in this regard at great length. At the cost of repetition we may notice that these are unquestionable propositions of law. It is only their application to the facts of a given case that would resolve the controversy. The Government has formed an opinion and has made a reference satisfying itself that there is an industrial dispute in existence between the parties. Of course formation of such an opinion can be examined by the court under Article 226 of the Constitution but it certainly falls within the very limited ambit. The court cannot sit as a court of appeal or appellate authority to examine excess of jurisdiction of the appropriate Government. Unless and until the opinion is apparently without jurisdiction, in excess of jurisdiction or is based on no material as also inter alia do not satisfy the ingredients of section 10 of the Act, the court would be very reluctant to interfere in such a reference. The Legislature in its wisdom has provided special forum for settlement of an industrial dispute which is expected to be expedient and any attempt to throttle such a proceedings at the threshold has to be examined with great caution. On the one hand the petitioner company itself questioned the legality of the orders passed by the appropriate authority/forums on the complaints of the workmen in writ petitions and certain observations have come in those orders/judgments that the respondent-workmen were part and parcel of the frame work of the workmen of the petitioner company. Even if they were employed by the contractor as alleged by the company, still the labour court would have to examine the contentions of the workmen that the contract is sham and a camouflage to frustrate the legitimate claim of the workmen. The Government was obviously not competent to go into these niceties of law and evidence and then write a judgment. Such an approach would be an apparent contradiction to the concept of formation of an opinion, which is to be based on prima facie material. From the history of this case, right from the talks from the year 2002, when the company took a decision to declare closure under section 25(O) of the Act and thereafter the parties have been in continuous litigation before one authority or the other forum or court, we are really unable to appreciate the contention of the petitioner that there exists no prima facie case for reference to the industrial court. The parties are neither strangers to each other nor there is any conclusive findings recorded which has attained finality between the parties, answering the query whether there exists or not, relationship of employer-employee between the parties. This question itself has to be adjudicated upon though there is more than prima facie material before the appropriate Government to form an opinion for making a reference within the provisions of section 10 of the Act.48. Equally ill founded is the reliance placed by the learned counsel for the petitioner upon a judgment in the case of Nedungadi Bank Ltd. vs. K.P. Madhavankutty and ors, 2000 (l) LLJ 561 and Reserve Bank of India vs. Gopinath Sharma and anr, 2006 (6) SCC 221 to press the plea of delay and laches. In the present case if there is any delay it is on the part of the petitioner company. The workmen sincerely facing the prolonged litigation right from the year 2003 and some of the orders were passed in their favour while such orders were set aside by the High Court. The order of reference was made on 20th July 2006. The petitioner company in fact accepted the said order and participated in the proceedings before the labour court. They filed their reply to the statement of claim of the workmen, of course taking various objections. The parties have filed documents and now the reference is listed for recording evidence before that court. The petitioner company itself has acquiesced in the proceedings and has taken considerable time to file the present petition, which itself was instituted on 27th February 2007. There is no reasonable or proper explanation as to why the company has filed the present petition after such delay, particularly when the contention is that the action of the Government was in excess of jurisdiction vested in it under the provisions of section 10 of the Act.49. In the order passed in Complaint Nos 750 of 1997 and 622 of 1998 a definite direction was given to the petitioner company to regularize the services of the respondent-workmen at its head office and also pay them difference of wages besides restraining them from passing transfer orders and termination orders in case of the respondent-workmen. This entire proceedings would constitute more than sufficient material for expressing prima facie opinion in relation to the existence of an industrial dispute and for its appropriate reference to the court of competent jurisdiction. The record of the present petition clearly shows that there was persistent dispute between the workmen and the employer. The question in regard to the transaction being sham or otherwise has also been raised. If this court were to examine, all these questions of fact, which require proof by documentary or oral evidence, in our opinion, the court would exceed its jurisdiction under Article 226 of the Constitution of India and would practically answer the references, which have been made to the labour court in accordance with the provisions of the special statute.50. We may notice that in the case of Subhash Chand (supra), the court in fact had observed that the appropriate Government could not require the parties to produce documentary or oral evidence to satisfy the ingredients of section 10. The Government has to form an opinion, prima facie, in regard to the contents and essentials indicated in that judgment. Finding that prima facie there was material before the appropriate Government to consider the case, the Government was directed to consider the case of the workmen and make a reference in accordance with law.
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### Explanation:
which prima facie satisfying the requirements of section 10 read with section 2(k) of the Act and the said dispute was incapable of being finally decided, without proper legal adjudicationin common parlance, the expression dispute connotes a controversy, a quarrel, even a disagreement between the management and the employee or any dispute which is capable of giving rise to an industrial action within the scope of Section 2 (k) of the Act. It can hardly be contended that the dispute involved in the present petition would not be covered under this definition. The parties have been litigating before different forums either in relation to determination, closure, entitlement of wages and/or even reinstatement. All these matters were seriously contested by the parties to the lis including thefacts of the present case clearly reflect that there was not only mere apprehended dispute but there existed an actual dispute which has been the bone of contention between the parties in different proceedings and over a prolonged period of time the workmen had been asserting their right of absorption as well as wrongful termination and that there was sham and camouflage transaction between the company and the contractor being intended to frustrate their claim. This of course was denied by the petitioner company. According to them the company had closed its unit with leave and paid retrenchment compensation to the workmen and as such no dispute existed. This was the controversial bone of the contention between the parties and in view of the fact that failure report was submitted by the Conciliation Officer on 14th December 2005, adjudication by the proper forum waspetitioner company itself questioned the legality of the orders passed by the appropriate authority/forums on the complaints of the workmen in writ petitions and certain observations have come in those orders/judgments that thewere part and parcel of the frame work of the workmen of the petitioner company. Even if they were employed by the contractor as alleged by the company, still the labour court would have to examine the contentions of the workmen that the contract is sham and a camouflage to frustrate the legitimate claim of the workmen. The Government was obviously not competent to go into these niceties of law and evidence and then write a judgment. Such an approach would be an apparent contradiction to the concept of formation of an opinion, which is to be based on prima facie material. From the history of this case, right from the talks from the year 2002, when the company took a decision to declare closure under section 25(O) of the Act and thereafter the parties have been in continuous litigation before one authority or the other forum or court, we are really unable to appreciate the contention of the petitioner that there exists no prima facie case for reference to the industrial court. The parties are neither strangers to each other nor there is any conclusive findings recorded which has attained finality between the parties, answering the query whether there exists or not, relationship ofbetween the parties. This question itself has to be adjudicated upon though there is more than prima facie material before the appropriate Government to form an opinion for making a reference within the provisions of section 10 of thethe present case if there is any delay it is on the part of the petitioner company. The workmen sincerely facing the prolonged litigation right from the year 2003 and some of the orders were passed in their favour while such orders were set aside by the High Court. The order of reference was made on 20th July 2006. The petitioner company in fact accepted the said order and participated in the proceedings before the labour court. They filed their reply to the statement of claim of the workmen, of course taking various objections. The parties have filed documents and now the reference is listed for recording evidence before that court. The petitioner company itself has acquiesced in the proceedings and has taken considerable time to file the present petition, which itself was instituted on 27th February 2007. There is no reasonable or proper explanation as to why the company has filed the present petition after such delay, particularly when the contention is that the action of the Government was in excess of jurisdiction vested in it under the provisions of section 10 of the Act.49. In the order passed in Complaint Nos 750 of 1997 and 622 of 1998 a definite direction was given to the petitioner company to regularize the services of theat its head office and also pay them difference of wages besides restraining them from passing transfer orders and termination orders in case of theThis entire proceedings would constitute more than sufficient material for expressing prima facie opinion in relation to the existence of an industrial dispute and for its appropriate reference to the court of competent jurisdiction. The record of the present petition clearly shows that there was persistent dispute between the workmen and the employer. The question in regard to the transaction being sham or otherwise has also been raised. If this court were to examine, all these questions of fact, which require proof by documentary or oral evidence, in our opinion, the court would exceed its jurisdiction under Article 226 of the Constitution of India and would practically answer the references, which have been made to the labour court in accordance with the provisions of the special statute.50. We may notice that in the case of Subhash Chand (supra), the court in fact had observed that the appropriate Government could not require the parties to produce documentary or oral evidence to satisfy the ingredients of section 10. The Government has to form an opinion, prima facie, in regard to the contents and essentials indicated in that judgment. Finding that prima facie there was material before the appropriate Government to consider the case, the Government was directed to consider the case of the workmen and make a reference in accordance with law.
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Uttar Pradesh Co-Operative Federation & Another Vs. State of Uttar Pradesh & Others | meeting remove or expel a member, Rule 59 states that no resolution for removal or expulsion shall be effective unless it is carried by a majority of two thirds of the members present and voting. Rule 63 states that a member of the co-operative society shall cease to be a member inter alia on his removal or expulsion from society or retirement, transfer or forfeiture of all the shares held by him.24. The provisions in the Act and the Rules indicate that the removal can only be under a resolution. There is no provision for automatic cessation of membership. In the absence of a resolution there is no valid removal of co-operative bank from membership.25. In the case of removal of a member the shares of such a member may under Section 23 (3) of the Act be transferred to or acquired or retained by a member. Chapter VI of the Rules consisting of Rules 65 to 82 deals with shares. Rule 82 states that where a member of a co-operative society ceases to be such a member the value of his share or interest in the share capital of the society to be paid to him or his nominee shall be equal to the actual amount paid by the member to the society. These provisions indicate that there is no reduction of the share capital. There was no removal of co-operative banks from the membership of the Federation. There was no resolution to that effect. The shares owned by the co-operative banks are still in existence. These shares have not been yet transferred to any one. The shares have not been transferred to, acquired or retained by any person. The shares still stand in the name of the co-operative banks. The share capital is not reduced. It is therefore not valid on the part of the State Government to reduce the shares worth Rs. 53,000 owned by the co-operative banks, and not to take the same into consideration in calculating the total share capital.26. The other plea of the State Government is that shares worth Rs. 50,000 belonging to the Saharanpur District Co-operative Federation were retired with the result that there was reduction of total share capital by a sum of Rs. 50,000. Retirement of shares is dealt with by rule 66 of the Rules. It is stated in the rule that under Section 23 (3) of the Act a co-operative society may retire the shares of a member in the instances mentioned therein. The fourth instance in Rule 66 is that if a member of a co-operative society has ceased to be a shareholder on account of adjustment of his membership to any other class under Rule 44 (c) or if he has been removed from membership under R. 56 (a), his shares may be retired. Again under Rule 70 a Central Co-operative Society may reduce the share capital according to a scheme approved by the Registrar. Such a scheme may provide for (i) extinguishing or reducing the liability on any of its shares in respect of share capital not paid up, or (ii) cancelling any paid up share capital or (iii) paying back any paid up share capital which is in excess of the needs of the central society.27. The Saharanpur District Co-operative Federation never ceased to be a member. There has been no removal or expulsion. If the Saharanpur District Co-operative Federation is still a member its share money cannot be taken out of share capital fund and treated as security money. Retirement of share money under R. 66 is in four cases. First, if a member at the time of his admission to membership enters into share participation agreement between the society and the member his share may be retired, Secondly, the shares of a member in a salary earning co-operative society in the event of transfer of such member from the area of operation of the society or cessation of his service by virtue of which he held membership of the society may be retired. Thirdly, the shares of a member of a co-operative society organised in educational institutions if the member ceases to be a student or a member of the staff of the institution by virtue of which he was holding membership of the society may be retired. None of these three contingencies of retirement of shares applies to the case of the Saharanpur District Co-operative Federation. The fourth instance mentioned in Rule 66 is the retirement of a member who has been removed from membership or has ceased to be a shareholder on account of adjustment of membership under Rule 44 (c). The District Co-operative Federation, Saharanpur does not fail in this class also.28. The amount of Rs. 50,000 representing the shares of the District Co-operative Federation, Saharanpur was said by the State Government to be kept in security. If the shares were in security the shares remained in specie. It could not be said that the shares were converted by sale into money. Rule 75 forbids hypothecation of shares as security for any loan. It is therefore not open to the State Government to contend that the shares worth Rs. 50,000 belonging to the District Co-operative Federation, Saharanpur were taken off the share capital of the Federation.29.The condition precedent to the exercise of rights of the State Government under Section 34 is that the State Government owns 60 per cent or more of the share capital of the Federation. The entire basis of exercise of right of the Government was that shares worth Rs. 53,000 owned by the Co-operative banks and shares worth Rs. 50,000 owned by the District Co-operative Federation, Saharanpur were no longer part of the share capital. There is no foundation for the State Government to take up that plea. The shares in both the cases are still part of the share capital. The result is that it could not be said that the State Government was justified to exercise right under Section 34 of the Act.30. | 1[ds]12. It is not necessary to express any opinion on the first three contentions because in our opinion the fourth contention succeeds.The Saharanpur District Co-operative Federation never ceased to be a member. There has been no removal or expulsion. If the Saharanpur District Co-operative Federation is still a member its share money cannot be taken out of share capital fund and treated as security money. Retirement of share money under R. 66 is in four cases. First, if a member at the time of his admission to membership enters into share participation agreement between the society and the member his share may be retired, Secondly, the shares of a member in a salary earning co-operative society in the event of transfer of such member from the area of operation of the society or cessation of his service by virtue of which he held membership of the society may be retired. Thirdly, the shares of a member of a co-operative society organised in educational institutions if the member ceases to be a student or a member of the staff of the institution by virtue of which he was holding membership of the society may be retired. None of these three contingencies of retirement of shares applies to the case of the Saharanpur District Co-operative Federation. The fourth instance mentioned in Rule 66 is the retirement of a member who has been removed from membership or has ceased to be a shareholder on account of adjustment of membership under Rule 44 (c). The District Co-operative Federation, Saharanpur does not fail in this class also.The amount of Rs. 50,000 representing the shares of the District Co-operative Federation, Saharanpur was said by the State Government to be kept in security. If the shares were in security the shares remained in specie. It could not be said that the shares were converted by sale into money. Rule 75 forbids hypothecation of shares as security for any loan. It is therefore not open to the State Government to contend that the shares worth Rs. 50,000 belonging to the District Co-operative Federation, Saharanpur were taken off the share capital of thecondition precedent to the exercise of rights of the State Government under Section 34 is that the State Government owns 60 per cent or more of the share capital of the Federation. The entire basis of exercise of right of the Government was that shares worth Rs. 53,000 owned by the Co-operative banks and shares worth Rs. 50,000 owned by the District Co-operative Federation, Saharanpur were no longer part of the share capital. There is no foundation for the State Government to take up that plea. The shares in both the cases are still part of the share capital. The result is that it could not be said that the State Government was justified to exercise right under Section 34 of the Act. | 1 | 3,511 | 513 | ### 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:
meeting remove or expel a member, Rule 59 states that no resolution for removal or expulsion shall be effective unless it is carried by a majority of two thirds of the members present and voting. Rule 63 states that a member of the co-operative society shall cease to be a member inter alia on his removal or expulsion from society or retirement, transfer or forfeiture of all the shares held by him.24. The provisions in the Act and the Rules indicate that the removal can only be under a resolution. There is no provision for automatic cessation of membership. In the absence of a resolution there is no valid removal of co-operative bank from membership.25. In the case of removal of a member the shares of such a member may under Section 23 (3) of the Act be transferred to or acquired or retained by a member. Chapter VI of the Rules consisting of Rules 65 to 82 deals with shares. Rule 82 states that where a member of a co-operative society ceases to be such a member the value of his share or interest in the share capital of the society to be paid to him or his nominee shall be equal to the actual amount paid by the member to the society. These provisions indicate that there is no reduction of the share capital. There was no removal of co-operative banks from the membership of the Federation. There was no resolution to that effect. The shares owned by the co-operative banks are still in existence. These shares have not been yet transferred to any one. The shares have not been transferred to, acquired or retained by any person. The shares still stand in the name of the co-operative banks. The share capital is not reduced. It is therefore not valid on the part of the State Government to reduce the shares worth Rs. 53,000 owned by the co-operative banks, and not to take the same into consideration in calculating the total share capital.26. The other plea of the State Government is that shares worth Rs. 50,000 belonging to the Saharanpur District Co-operative Federation were retired with the result that there was reduction of total share capital by a sum of Rs. 50,000. Retirement of shares is dealt with by rule 66 of the Rules. It is stated in the rule that under Section 23 (3) of the Act a co-operative society may retire the shares of a member in the instances mentioned therein. The fourth instance in Rule 66 is that if a member of a co-operative society has ceased to be a shareholder on account of adjustment of his membership to any other class under Rule 44 (c) or if he has been removed from membership under R. 56 (a), his shares may be retired. Again under Rule 70 a Central Co-operative Society may reduce the share capital according to a scheme approved by the Registrar. Such a scheme may provide for (i) extinguishing or reducing the liability on any of its shares in respect of share capital not paid up, or (ii) cancelling any paid up share capital or (iii) paying back any paid up share capital which is in excess of the needs of the central society.27. The Saharanpur District Co-operative Federation never ceased to be a member. There has been no removal or expulsion. If the Saharanpur District Co-operative Federation is still a member its share money cannot be taken out of share capital fund and treated as security money. Retirement of share money under R. 66 is in four cases. First, if a member at the time of his admission to membership enters into share participation agreement between the society and the member his share may be retired, Secondly, the shares of a member in a salary earning co-operative society in the event of transfer of such member from the area of operation of the society or cessation of his service by virtue of which he held membership of the society may be retired. Thirdly, the shares of a member of a co-operative society organised in educational institutions if the member ceases to be a student or a member of the staff of the institution by virtue of which he was holding membership of the society may be retired. None of these three contingencies of retirement of shares applies to the case of the Saharanpur District Co-operative Federation. The fourth instance mentioned in Rule 66 is the retirement of a member who has been removed from membership or has ceased to be a shareholder on account of adjustment of membership under Rule 44 (c). The District Co-operative Federation, Saharanpur does not fail in this class also.28. The amount of Rs. 50,000 representing the shares of the District Co-operative Federation, Saharanpur was said by the State Government to be kept in security. If the shares were in security the shares remained in specie. It could not be said that the shares were converted by sale into money. Rule 75 forbids hypothecation of shares as security for any loan. It is therefore not open to the State Government to contend that the shares worth Rs. 50,000 belonging to the District Co-operative Federation, Saharanpur were taken off the share capital of the Federation.29.The condition precedent to the exercise of rights of the State Government under Section 34 is that the State Government owns 60 per cent or more of the share capital of the Federation. The entire basis of exercise of right of the Government was that shares worth Rs. 53,000 owned by the Co-operative banks and shares worth Rs. 50,000 owned by the District Co-operative Federation, Saharanpur were no longer part of the share capital. There is no foundation for the State Government to take up that plea. The shares in both the cases are still part of the share capital. The result is that it could not be said that the State Government was justified to exercise right under Section 34 of the Act.30.
### Response:
1
### Explanation:
12. It is not necessary to express any opinion on the first three contentions because in our opinion the fourth contention succeeds.The Saharanpur District Co-operative Federation never ceased to be a member. There has been no removal or expulsion. If the Saharanpur District Co-operative Federation is still a member its share money cannot be taken out of share capital fund and treated as security money. Retirement of share money under R. 66 is in four cases. First, if a member at the time of his admission to membership enters into share participation agreement between the society and the member his share may be retired, Secondly, the shares of a member in a salary earning co-operative society in the event of transfer of such member from the area of operation of the society or cessation of his service by virtue of which he held membership of the society may be retired. Thirdly, the shares of a member of a co-operative society organised in educational institutions if the member ceases to be a student or a member of the staff of the institution by virtue of which he was holding membership of the society may be retired. None of these three contingencies of retirement of shares applies to the case of the Saharanpur District Co-operative Federation. The fourth instance mentioned in Rule 66 is the retirement of a member who has been removed from membership or has ceased to be a shareholder on account of adjustment of membership under Rule 44 (c). The District Co-operative Federation, Saharanpur does not fail in this class also.The amount of Rs. 50,000 representing the shares of the District Co-operative Federation, Saharanpur was said by the State Government to be kept in security. If the shares were in security the shares remained in specie. It could not be said that the shares were converted by sale into money. Rule 75 forbids hypothecation of shares as security for any loan. It is therefore not open to the State Government to contend that the shares worth Rs. 50,000 belonging to the District Co-operative Federation, Saharanpur were taken off the share capital of thecondition precedent to the exercise of rights of the State Government under Section 34 is that the State Government owns 60 per cent or more of the share capital of the Federation. The entire basis of exercise of right of the Government was that shares worth Rs. 53,000 owned by the Co-operative banks and shares worth Rs. 50,000 owned by the District Co-operative Federation, Saharanpur were no longer part of the share capital. There is no foundation for the State Government to take up that plea. The shares in both the cases are still part of the share capital. The result is that it could not be said that the State Government was justified to exercise right under Section 34 of the Act.
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Sat Pal Vs. State of Haryana | Fazal Ali, J. This appeal by special leave is directed against the judgment of the Punjab and Haryana High Court dated March 24, 1972 by which a revision petition of the accused who was convicted under Section 7 of the Essential commodities Act, was dismissed an a plea raised by the present appellant that the order of confiscation of his truck be cancelled, was over ruled. In the instant case, we are not all concerned with merits of the conviction of the accused. The only point that arises for determination is, whether the order of the Magistrate directing the confiscation of the truck under Section 7(1) (b) of the Essential Commodities Act as it stood in 1969 is legally valid. The appellant had filed a petition before the High Court under Section 561 A prying that the order of the Magistrate was extremely harsh and worked serious injustice to the appellant whose property worth one lac has been confiscation for an attempt to export from Haryana to Delhi 75 maunds of cattle fodder. The High Court does not appear to have considered the merits of the application filed by the petitioner but while deciding the case of the accused on merits, it upheld the order of confiscation.2. Mr. Bhardwaj appearing for the appellant submitted three contentions before us. In the first place it was argued that there is nothing to show that there was any attempt to export fodder in the truck outside the border of Haryana. We have considered this argument but in view of the findings of fact arrived by the Courts below, it is established beyond doubt that the truck belonging to the appellant was seized on the Haryana-Delhi border when it wanted to cross the border and enter the Delhi border. Thus a clear attempt to export the fodder to Delhi was provided. Secondly, it was argued that the mere exporting of cattle fodder, is not prohibited by law. This argument is also without any substance inasmuch as there was a notified Order passed by the Haryana Government under which the export of cattle fodder was prohibited from Haryana to Delhi. This Order was passed under Section 3 of the Essential Commodities Act and violation of this Order was punishable under section 7(1) (b) of the Essential commodities Act. This argument is, therefore, overruled.3. The last point put forward before us by the counsel for the appellant was that although the appellant had invoked the inherent jurisdiction of the High Court under Section 561A CrPC to cancel the order in view of its harshness and arbitrariness, yet the High Court did not consider this point at all. It was submitted that, at any rate, this was a most suitable case in which the discretion under the proviso to Section 7(1) (b) could have been exercised by the Government. We find ourselves in complete agreement with this argument which is well-founded and must prevail, Section 7(1)(b) reads thus :Any property in respect of which the order has been contravened or such part thereof as to the Court may seem fit including any packages, coverings or receptacles, in which the property is found and any animal, vehicle vessel or other conveyance used in carrying the property, shall be forfeited to the Government :Provided that if the Court is of opinion that it is not necessary to direct forfeiture in respect of the whole or, as the case may be, any part of the property or any packages, coverings or receptacles or any animal, vehicle, vessel or other conveyance, it may for reasons to be recorded, retrain from doing so.4. A perusal of the section and also of the proviso clearly shows that the Court has undoubtedly a discretion in suitable cases for reasons to be recorded for not imposing the penalty of confiscation. In the instant case there are special circumstances which clearly attract the application of the proviso and the order of confiscation ought not to have been passed by the Magistrate. To begin with, the appellant was not a party to the proceedings as he was not given an opportunity to show cause to the Court the circumstances under which the order of confiscation could be passed. Secondly, the truck of the appellant was every valuable property and to order its confiscation merely because an attempt was made to export cattle fodder through it, would indeed be a very harsh order so as work serious injustice to the appellant. Thirdly, there is no evidence to indicate that the truck which was used to carry the fodder was hired with the knowledge or concurrence of the appellant, . Having regard to these special circumstances, we are clearly of the opinion that this was a fit case in which Court ought to have exercised its discretion under proviso in not imposing the penalty of confiscation. As the present appeal is directed against an order of confiscation, this Court also exercises the same power as the trial Court. | 1[ds]We have considered this argument but in view of the findings of fact arrived by the Courts below, it is established beyond doubt that the truck belonging to the appellant was seized on theborder when it wanted to cross the border and enter the Delhi border. Thus a clear attempt to export the fodder to Delhi was provided. Secondly, it was argued that the mere exporting of cattle fodder, is not prohibited by law. This argument is also without any substance inasmuch as there was a notified Order passed by the Haryana Government under which the export of cattle fodder was prohibited from Haryana to Delhi. This Order was passed under Section 3 of the Essential Commodities Act and violation of this Order was punishable under section 7(1) (b) of the Essential commodities Act. This argument is, therefore, overruled.A perusal of the section and also of the proviso clearly shows that the Court has undoubtedly a discretion in suitable cases for reasons to be recorded for not imposing the penalty of confiscation. In the instant case there are special circumstances which clearly attract the application of the proviso and the order of confiscation ought not to have been passed by the Magistrate. To begin with, the appellant was not a party to the proceedings as he was not given an opportunity to show cause to the Court the circumstances under which the order of confiscation could be passed. Secondly, the truck of the appellant was every valuable property and to order its confiscation merely because an attempt was made to export cattle fodder through it, would indeed be a very harsh order so as work serious injustice to the appellant. Thirdly, there is no evidence to indicate that the truck which was used to carry the fodder was hired with the knowledge or concurrence of the appellant, . Having regard to these special circumstances, we are clearly of the opinion that this was a fit case in which Court ought to have exercised its discretion under proviso in not imposing the penalty of confiscation. As the present appeal is directed against an order of confiscation, this Court also exercises the same power as the trial Court. | 1 | 909 | 398 | ### 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:
Fazal Ali, J. This appeal by special leave is directed against the judgment of the Punjab and Haryana High Court dated March 24, 1972 by which a revision petition of the accused who was convicted under Section 7 of the Essential commodities Act, was dismissed an a plea raised by the present appellant that the order of confiscation of his truck be cancelled, was over ruled. In the instant case, we are not all concerned with merits of the conviction of the accused. The only point that arises for determination is, whether the order of the Magistrate directing the confiscation of the truck under Section 7(1) (b) of the Essential Commodities Act as it stood in 1969 is legally valid. The appellant had filed a petition before the High Court under Section 561 A prying that the order of the Magistrate was extremely harsh and worked serious injustice to the appellant whose property worth one lac has been confiscation for an attempt to export from Haryana to Delhi 75 maunds of cattle fodder. The High Court does not appear to have considered the merits of the application filed by the petitioner but while deciding the case of the accused on merits, it upheld the order of confiscation.2. Mr. Bhardwaj appearing for the appellant submitted three contentions before us. In the first place it was argued that there is nothing to show that there was any attempt to export fodder in the truck outside the border of Haryana. We have considered this argument but in view of the findings of fact arrived by the Courts below, it is established beyond doubt that the truck belonging to the appellant was seized on the Haryana-Delhi border when it wanted to cross the border and enter the Delhi border. Thus a clear attempt to export the fodder to Delhi was provided. Secondly, it was argued that the mere exporting of cattle fodder, is not prohibited by law. This argument is also without any substance inasmuch as there was a notified Order passed by the Haryana Government under which the export of cattle fodder was prohibited from Haryana to Delhi. This Order was passed under Section 3 of the Essential Commodities Act and violation of this Order was punishable under section 7(1) (b) of the Essential commodities Act. This argument is, therefore, overruled.3. The last point put forward before us by the counsel for the appellant was that although the appellant had invoked the inherent jurisdiction of the High Court under Section 561A CrPC to cancel the order in view of its harshness and arbitrariness, yet the High Court did not consider this point at all. It was submitted that, at any rate, this was a most suitable case in which the discretion under the proviso to Section 7(1) (b) could have been exercised by the Government. We find ourselves in complete agreement with this argument which is well-founded and must prevail, Section 7(1)(b) reads thus :Any property in respect of which the order has been contravened or such part thereof as to the Court may seem fit including any packages, coverings or receptacles, in which the property is found and any animal, vehicle vessel or other conveyance used in carrying the property, shall be forfeited to the Government :Provided that if the Court is of opinion that it is not necessary to direct forfeiture in respect of the whole or, as the case may be, any part of the property or any packages, coverings or receptacles or any animal, vehicle, vessel or other conveyance, it may for reasons to be recorded, retrain from doing so.4. A perusal of the section and also of the proviso clearly shows that the Court has undoubtedly a discretion in suitable cases for reasons to be recorded for not imposing the penalty of confiscation. In the instant case there are special circumstances which clearly attract the application of the proviso and the order of confiscation ought not to have been passed by the Magistrate. To begin with, the appellant was not a party to the proceedings as he was not given an opportunity to show cause to the Court the circumstances under which the order of confiscation could be passed. Secondly, the truck of the appellant was every valuable property and to order its confiscation merely because an attempt was made to export cattle fodder through it, would indeed be a very harsh order so as work serious injustice to the appellant. Thirdly, there is no evidence to indicate that the truck which was used to carry the fodder was hired with the knowledge or concurrence of the appellant, . Having regard to these special circumstances, we are clearly of the opinion that this was a fit case in which Court ought to have exercised its discretion under proviso in not imposing the penalty of confiscation. As the present appeal is directed against an order of confiscation, this Court also exercises the same power as the trial Court.
### Response:
1
### Explanation:
We have considered this argument but in view of the findings of fact arrived by the Courts below, it is established beyond doubt that the truck belonging to the appellant was seized on theborder when it wanted to cross the border and enter the Delhi border. Thus a clear attempt to export the fodder to Delhi was provided. Secondly, it was argued that the mere exporting of cattle fodder, is not prohibited by law. This argument is also without any substance inasmuch as there was a notified Order passed by the Haryana Government under which the export of cattle fodder was prohibited from Haryana to Delhi. This Order was passed under Section 3 of the Essential Commodities Act and violation of this Order was punishable under section 7(1) (b) of the Essential commodities Act. This argument is, therefore, overruled.A perusal of the section and also of the proviso clearly shows that the Court has undoubtedly a discretion in suitable cases for reasons to be recorded for not imposing the penalty of confiscation. In the instant case there are special circumstances which clearly attract the application of the proviso and the order of confiscation ought not to have been passed by the Magistrate. To begin with, the appellant was not a party to the proceedings as he was not given an opportunity to show cause to the Court the circumstances under which the order of confiscation could be passed. Secondly, the truck of the appellant was every valuable property and to order its confiscation merely because an attempt was made to export cattle fodder through it, would indeed be a very harsh order so as work serious injustice to the appellant. Thirdly, there is no evidence to indicate that the truck which was used to carry the fodder was hired with the knowledge or concurrence of the appellant, . Having regard to these special circumstances, we are clearly of the opinion that this was a fit case in which Court ought to have exercised its discretion under proviso in not imposing the penalty of confiscation. As the present appeal is directed against an order of confiscation, this Court also exercises the same power as the trial Court.
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M/S GENENTECH INC Vs. DRUGS CONTROLLER GENERAL OF INDIA | with Biocon and Mylan. The Division Bench felt that respondent no.3 is on similar footing as Biocon and Mylan and therefore parity in marketing of their respective biosimilar product can be allowed. 18. In their challenge to the impugned order, the appellants have contended that in passing the impugned order, the Division Bench had failed to simultaneously consider and dispose of the pending appeals and the interim applications filed by the plaintiffs. We had earlier referred to the order passed by this Court on 8.3.2019 in SLP (C) No.6203/2019 which required the High Court to simultaneously take up the appeals and the interim applications filed by both sides. Although some of the contentions raised by the appellants counsel were taken into consideration, those submissions were examined by the Division Bench only in the context of the application filed by respondent no.3. On this aspect, the learned senior counsel for respondent no.3 submitted that non mentioning of the FAO and the IA of the appellants was an inadvertent omission. However such submission, in the face of the specific observation made by the Division Bench in paragraph 51 of the impugned order, cannot be accepted by us. 19. When the impugned order of the Division Bench is read in the context of the express direction of this Court, it is clearly discernible that the Division Bench had only considered the appeal and application filed by Reliance on merit that is FAO(OS) No. 227/2016 and C.M. Appl. No. 22510/2016; without entertaining the appellants application. In fact the Bench itself clarified the position in paragraph 51 of the impugned order by stating the following:- ……. ………….…… 51. We have heard learned counsels and considered their respective submissions. The submissions made on behalf of the parties are being examined in the context of the appellants application for stay of the impugned order. …………. …… …….. …… ……. …… ………………. 20. The fact that the Division Bench was singularly concerned with taking up the Reliances interim application is further established from the separate order passed on 16.7.2019 in FAO (OS) No. 132, 133, 226, 227 and 268 of 2016 which directs the applications (including the appeal and the application of the plaintiffs) to be listed on 11.2.2020. By way of a separate order, of the same date i.e. 16.7.2019, the Division Bench reserved orders on Reliances application. Therefore, it is difficult for us to accept as has been suggested by the learned Senior Counsel for the respondent no.3 that the segregation of the application of one party by the Division Bench, could be an inadvertent error. 21. In the above context, the Division Bench even without considering the appellants interim application through their observations in paragraph 57, had clearly shut out any scope for the appellants application to be heard and in effect, ordered on the application. 22. In the interim order passed by the learned Single Judge on 25.4.2016, the conditions imposed on Reliances product by the DCGI were taken into account. The said interim order was operating without causing much hindrance and respondent No. 3 was successful in participation in government tenders and supplies, with their drug. Therefore, the contrary submission made by the learned Senior Counsel for respondent no.3 is found to be incorrect. 23. As regards the contention made by Mr. Poorvayya that the condition imposed by the learned Single Judge on the packaging/labelling is contrary to the statutory prescriptions, it must be borne in mind that the arrangement ordered by the learned Single Judge has been in operation since 25.04.2016. Therefore without a final decision on the suit on the basis of relevant evidence, the continuing arrangement in our opinion should not have been disturbed, on this count. 24. The appellants suit before the Delhi High Court is not a trade mark action nor it is an attempt to enforce the appellants patent, which admittedly expired in 2013. The suit is an action for extended passing off and to prevent the respondent from using the appellants data and improper reference to its drug Trastuzumab. Therefore, the expiry of the appellants patent right on the drug Trastuzumab may not have any direct bearing on the contention raised in the Reliance suit. 25. As regards the submission on the timing of the suit and the other contentions raised on the approval secured from the Subject Expert Committee, these are matters which should appropriately be dealt with when the suit is finally decided. Those need not be factored in at this stage, in support of the impugned interim order. 26. Reverting back to the impugned order, the Division Bench had not only considered the contention raised by the appellants in paragraphs 41 to 50 but then rejected those, in paragraphs 52 to 60 of the same order. In such circumstances, directing the Division Bench to now consider the appellants appeal FAO No. 227/2016 and CM No. 26902 of 2016 would in our view be nothing but an empty formality, more particularly in the present appeal when this Court taking note of the order passed by the learned Single Judge imposing conditions and the same being in operation from 25.4.2016 has approved the same to be an appropriate interlocutory order considering the nature of the suit where all other issues are to be considered. 27. Because of the foregoing, and more particularly because the Division Bench did not keep in view the order of this Court dated 8.3.2019 to ensure analogous consideration of the interim applications of both sides in terms of this Courts earlier direction and having regard to the fact that the position prevailing since last three and a half years (pursuant to the learned Single Judges order dated 25.4.2016) have been upset without considering the issue of balance of convenience, we are persuaded to hold that the Division Bench was in error. Without analogous consideration of the appellants applications, the Court should not have unsettled the prevailing situation for the last three and half years, without final conclusion of the Reliance suit. | 1[ds]17. As permitted by the interim order dated 25.4.2016, the respondent no.3 launched their bio similar product TrastuRel and they have been in the market with their drug for the last about three and a half years. They have also participated in Government tenders and when certain doubts were raised on whether the drug TrastuRel is biosimilar with Trastuzumab, the High Court had intervened in favour of respondent no.3, in separate proceeding. However, while the interim order passed by the learned Single Judge did not stop the marketing of the drug TrastuRel, the Division Bench even while adverting to the concern raised by the learned Single Judge on the issues, which are to be determined when the suit is finally decided, allowed respondent no.3 the parity of operation with Biocon and Mylan. The Division Bench felt that respondent no.3 is on similar footing as Biocon and Mylan and therefore parity in marketing of their respective biosimilar product can be allowed18. In their challenge to the impugned order, the appellants have contended that in passing the impugned order, the Division Bench had failed to simultaneously consider and dispose of the pending appeals and the interim applications filed by the plaintiffs. We had earlier referred to the order passed by this Court on 8.3.2019 in SLP (C) No.6203/2019 which required the High Court to simultaneously take up the appeals and the interim applications filed by both sides. Although some of the contentions raised by the appellants counsel were taken into consideration, those submissions were examined by the Division Bench only in the context of the application filed by respondent no.3. On this aspect, the learned senior counsel for respondent no.3 submitted that non mentioning of the FAO and the IA of the appellants was an inadvertent omission. However such submission, in the face of the specific observation made by the Division Bench in paragraph 51 of the impugned order, cannot be accepted by us20. The fact that the Division Bench was singularly concerned with taking up the Reliances interim application is further established from the separate order passed on 16.7.2019 in FAO (OS) No. 132, 133, 226, 227 and 268 of 2016 which directs the applications (including the appeal and the application of the plaintiffs) to be listed on 11.2.2020. By way of a separate order, of the same date i.e. 16.7.2019, the Division Bench reserved orders on Reliances application. Therefore, it is difficult for us to accept as has been suggested by the learned Senior Counsel for the respondent no.3 that the segregation of the application of one party by the Division Bench, could be an inadvertent error21. In the above context, the Division Bench even without considering the appellants interim application through their observations in paragraph 57, had clearly shut out any scope for the appellants application to be heard and in effect, ordered on the application22. In the interim order passed by the learned Single Judge on 25.4.2016, the conditions imposed on Reliances product by the DCGI were taken into account. The said interim order was operating without causing much hindrance and respondent No. 3 was successful in participation in government tenders and supplies, with their drug. Therefore, the contrary submission made by the learned Senior Counsel for respondent no.3 is found to be incorrect23. As regards the contention made by Mr. Poorvayya that the condition imposed by the learned Single Judge on the packaging/labelling is contrary to the statutory prescriptions, it must be borne in mind that the arrangement ordered by the learned Single Judge has been in operation since 25.04.2016. Therefore without a final decision on the suit on the basis of relevant evidence, the continuing arrangement in our opinion should not have been disturbed, on this count24. The appellants suit before the Delhi High Court is not a trade mark action nor it is an attempt to enforce the appellants patent, which admittedly expired in 2013. The suit is an action for extended passing off and to prevent the respondent from using the appellants data and improper reference to its drug Trastuzumab. Therefore, the expiry of the appellants patent right on the drug Trastuzumab may not have any direct bearing on the contention raised in the Reliance suit25. As regards the submission on the timing of the suit and the other contentions raised on the approval secured from the Subject Expert Committee, these are matters which should appropriately be dealt with when the suit is finally decided. Those need not be factored in at this stage, in support of the impugned interim order26. Reverting back to the impugned order, the Division Bench had not only considered the contention raised by the appellants in paragraphs 41 to 50 but then rejected those, in paragraphs 52 to 60 of the same order. In such circumstances, directing the Division Bench to now consider the appellants appeal FAO No. 227/2016 and CM No. 26902 of 2016 would in our view be nothing but an empty formality, more particularly in the present appeal when this Court taking note of the order passed by the learned Single Judge imposing conditions and the same being in operation from 25.4.2016 has approved the same to be an appropriate interlocutory order considering the nature of the suit where all other issues are to be considered27. Because of the foregoing, and more particularly because the Division Bench did not keep in view the order of this Court dated 8.3.2019 to ensure analogous consideration of the interim applications of both sides in terms of this Courts earlier direction and having regard to the fact that the position prevailing since last three and a half years (pursuant to the learned Single Judges order dated 25.4.2016) have been upset without considering the issue of balance of convenience, we are persuaded to hold that the Division Bench was in error. Without analogous consideration of the appellants applications, the Court should not have unsettled the prevailing situation for the last three and half years, without final conclusion of the Reliance suit. | 1 | 4,530 | 1,087 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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with Biocon and Mylan. The Division Bench felt that respondent no.3 is on similar footing as Biocon and Mylan and therefore parity in marketing of their respective biosimilar product can be allowed. 18. In their challenge to the impugned order, the appellants have contended that in passing the impugned order, the Division Bench had failed to simultaneously consider and dispose of the pending appeals and the interim applications filed by the plaintiffs. We had earlier referred to the order passed by this Court on 8.3.2019 in SLP (C) No.6203/2019 which required the High Court to simultaneously take up the appeals and the interim applications filed by both sides. Although some of the contentions raised by the appellants counsel were taken into consideration, those submissions were examined by the Division Bench only in the context of the application filed by respondent no.3. On this aspect, the learned senior counsel for respondent no.3 submitted that non mentioning of the FAO and the IA of the appellants was an inadvertent omission. However such submission, in the face of the specific observation made by the Division Bench in paragraph 51 of the impugned order, cannot be accepted by us. 19. When the impugned order of the Division Bench is read in the context of the express direction of this Court, it is clearly discernible that the Division Bench had only considered the appeal and application filed by Reliance on merit that is FAO(OS) No. 227/2016 and C.M. Appl. No. 22510/2016; without entertaining the appellants application. In fact the Bench itself clarified the position in paragraph 51 of the impugned order by stating the following:- ……. ………….…… 51. We have heard learned counsels and considered their respective submissions. The submissions made on behalf of the parties are being examined in the context of the appellants application for stay of the impugned order. …………. …… …….. …… ……. …… ………………. 20. The fact that the Division Bench was singularly concerned with taking up the Reliances interim application is further established from the separate order passed on 16.7.2019 in FAO (OS) No. 132, 133, 226, 227 and 268 of 2016 which directs the applications (including the appeal and the application of the plaintiffs) to be listed on 11.2.2020. By way of a separate order, of the same date i.e. 16.7.2019, the Division Bench reserved orders on Reliances application. Therefore, it is difficult for us to accept as has been suggested by the learned Senior Counsel for the respondent no.3 that the segregation of the application of one party by the Division Bench, could be an inadvertent error. 21. In the above context, the Division Bench even without considering the appellants interim application through their observations in paragraph 57, had clearly shut out any scope for the appellants application to be heard and in effect, ordered on the application. 22. In the interim order passed by the learned Single Judge on 25.4.2016, the conditions imposed on Reliances product by the DCGI were taken into account. The said interim order was operating without causing much hindrance and respondent No. 3 was successful in participation in government tenders and supplies, with their drug. Therefore, the contrary submission made by the learned Senior Counsel for respondent no.3 is found to be incorrect. 23. As regards the contention made by Mr. Poorvayya that the condition imposed by the learned Single Judge on the packaging/labelling is contrary to the statutory prescriptions, it must be borne in mind that the arrangement ordered by the learned Single Judge has been in operation since 25.04.2016. Therefore without a final decision on the suit on the basis of relevant evidence, the continuing arrangement in our opinion should not have been disturbed, on this count. 24. The appellants suit before the Delhi High Court is not a trade mark action nor it is an attempt to enforce the appellants patent, which admittedly expired in 2013. The suit is an action for extended passing off and to prevent the respondent from using the appellants data and improper reference to its drug Trastuzumab. Therefore, the expiry of the appellants patent right on the drug Trastuzumab may not have any direct bearing on the contention raised in the Reliance suit. 25. As regards the submission on the timing of the suit and the other contentions raised on the approval secured from the Subject Expert Committee, these are matters which should appropriately be dealt with when the suit is finally decided. Those need not be factored in at this stage, in support of the impugned interim order. 26. Reverting back to the impugned order, the Division Bench had not only considered the contention raised by the appellants in paragraphs 41 to 50 but then rejected those, in paragraphs 52 to 60 of the same order. In such circumstances, directing the Division Bench to now consider the appellants appeal FAO No. 227/2016 and CM No. 26902 of 2016 would in our view be nothing but an empty formality, more particularly in the present appeal when this Court taking note of the order passed by the learned Single Judge imposing conditions and the same being in operation from 25.4.2016 has approved the same to be an appropriate interlocutory order considering the nature of the suit where all other issues are to be considered. 27. Because of the foregoing, and more particularly because the Division Bench did not keep in view the order of this Court dated 8.3.2019 to ensure analogous consideration of the interim applications of both sides in terms of this Courts earlier direction and having regard to the fact that the position prevailing since last three and a half years (pursuant to the learned Single Judges order dated 25.4.2016) have been upset without considering the issue of balance of convenience, we are persuaded to hold that the Division Bench was in error. Without analogous consideration of the appellants applications, the Court should not have unsettled the prevailing situation for the last three and half years, without final conclusion of the Reliance suit.
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17. As permitted by the interim order dated 25.4.2016, the respondent no.3 launched their bio similar product TrastuRel and they have been in the market with their drug for the last about three and a half years. They have also participated in Government tenders and when certain doubts were raised on whether the drug TrastuRel is biosimilar with Trastuzumab, the High Court had intervened in favour of respondent no.3, in separate proceeding. However, while the interim order passed by the learned Single Judge did not stop the marketing of the drug TrastuRel, the Division Bench even while adverting to the concern raised by the learned Single Judge on the issues, which are to be determined when the suit is finally decided, allowed respondent no.3 the parity of operation with Biocon and Mylan. The Division Bench felt that respondent no.3 is on similar footing as Biocon and Mylan and therefore parity in marketing of their respective biosimilar product can be allowed18. In their challenge to the impugned order, the appellants have contended that in passing the impugned order, the Division Bench had failed to simultaneously consider and dispose of the pending appeals and the interim applications filed by the plaintiffs. We had earlier referred to the order passed by this Court on 8.3.2019 in SLP (C) No.6203/2019 which required the High Court to simultaneously take up the appeals and the interim applications filed by both sides. Although some of the contentions raised by the appellants counsel were taken into consideration, those submissions were examined by the Division Bench only in the context of the application filed by respondent no.3. On this aspect, the learned senior counsel for respondent no.3 submitted that non mentioning of the FAO and the IA of the appellants was an inadvertent omission. However such submission, in the face of the specific observation made by the Division Bench in paragraph 51 of the impugned order, cannot be accepted by us20. The fact that the Division Bench was singularly concerned with taking up the Reliances interim application is further established from the separate order passed on 16.7.2019 in FAO (OS) No. 132, 133, 226, 227 and 268 of 2016 which directs the applications (including the appeal and the application of the plaintiffs) to be listed on 11.2.2020. By way of a separate order, of the same date i.e. 16.7.2019, the Division Bench reserved orders on Reliances application. Therefore, it is difficult for us to accept as has been suggested by the learned Senior Counsel for the respondent no.3 that the segregation of the application of one party by the Division Bench, could be an inadvertent error21. In the above context, the Division Bench even without considering the appellants interim application through their observations in paragraph 57, had clearly shut out any scope for the appellants application to be heard and in effect, ordered on the application22. In the interim order passed by the learned Single Judge on 25.4.2016, the conditions imposed on Reliances product by the DCGI were taken into account. The said interim order was operating without causing much hindrance and respondent No. 3 was successful in participation in government tenders and supplies, with their drug. Therefore, the contrary submission made by the learned Senior Counsel for respondent no.3 is found to be incorrect23. As regards the contention made by Mr. Poorvayya that the condition imposed by the learned Single Judge on the packaging/labelling is contrary to the statutory prescriptions, it must be borne in mind that the arrangement ordered by the learned Single Judge has been in operation since 25.04.2016. Therefore without a final decision on the suit on the basis of relevant evidence, the continuing arrangement in our opinion should not have been disturbed, on this count24. The appellants suit before the Delhi High Court is not a trade mark action nor it is an attempt to enforce the appellants patent, which admittedly expired in 2013. The suit is an action for extended passing off and to prevent the respondent from using the appellants data and improper reference to its drug Trastuzumab. Therefore, the expiry of the appellants patent right on the drug Trastuzumab may not have any direct bearing on the contention raised in the Reliance suit25. As regards the submission on the timing of the suit and the other contentions raised on the approval secured from the Subject Expert Committee, these are matters which should appropriately be dealt with when the suit is finally decided. Those need not be factored in at this stage, in support of the impugned interim order26. Reverting back to the impugned order, the Division Bench had not only considered the contention raised by the appellants in paragraphs 41 to 50 but then rejected those, in paragraphs 52 to 60 of the same order. In such circumstances, directing the Division Bench to now consider the appellants appeal FAO No. 227/2016 and CM No. 26902 of 2016 would in our view be nothing but an empty formality, more particularly in the present appeal when this Court taking note of the order passed by the learned Single Judge imposing conditions and the same being in operation from 25.4.2016 has approved the same to be an appropriate interlocutory order considering the nature of the suit where all other issues are to be considered27. Because of the foregoing, and more particularly because the Division Bench did not keep in view the order of this Court dated 8.3.2019 to ensure analogous consideration of the interim applications of both sides in terms of this Courts earlier direction and having regard to the fact that the position prevailing since last three and a half years (pursuant to the learned Single Judges order dated 25.4.2016) have been upset without considering the issue of balance of convenience, we are persuaded to hold that the Division Bench was in error. Without analogous consideration of the appellants applications, the Court should not have unsettled the prevailing situation for the last three and half years, without final conclusion of the Reliance suit.
|
The Transmission Corporation of A.P. Ltd Vs. Commissioner of Income Tax, A.P | of this Act would mean sum on which income-tax is leviable. In other words, the said sum is chargeable to tax and could be assessed to tax under the Act. Consideration would be whether payment of sum to non-resident is chargeable to tax under the provisions of the Act or not ? That sum may be income or income hidden or otherwise embedded therein. If so, tax is required to be deducted on the said sum would be the income is to be computed on the basis of various provisions of the Act including provisions of computation of the business income, if the payment is trade receipt. However, what is to be deducted is income tax payable thereon at the rates in force. Under the Act, total income for the previous year would become chargeable to tax under Section 4. Sub-section (2) of Section 4 inter alia, provides that in respect of income chargeable under Sub-section (1), income tax shall be deducted at source where it is so deductible under any provision of the Act. If the sum that s to be paid to the non-resident is chargeable to tax, tax is required to be deducted. The sum which is to be paid may be income out of different heads of income provided under Section 14 of the Act, that is to say, income from salaries, income from house property, profits and gains of business or profession, capital gains and income from other sources. The scheme of tax deduction at source applies not only to the amount paid which wholly bears income character such as salaries, dividends, interest of securities etc., but also to gross sums, the whole of which may not be income or profits of the recipient, such as payments to contractors and sub-contractors and the payment of insurance commission. It has been contended that the sum which may be required to be paid to the non-resident may only be a trading receipt, and, any contain a fraction of sum as taxable income. It is true that in some cases, a trading receipt may contain a fraction of sum as taxable income, but in other cases such as interest, commission, transfer of rights of patents, goodwill or drawings for plant and machinery and such other transactions, it may contain large sum as taxable income under the provisions of the Act. Whatever may be the position, if the income is from profits and gains of business, it would be computed under the Act as provided at the time of regular assessment. The purpose of sub-section (1) of Section 195 is to see that the sum which is chargeable under Section 4 of the Act for levy and collection of income tax, the payee should deduct income tax thereon at the rates in force, if the amount is to be paid to a non-resident. The said provision is for tentative deduction of income tax thereon subject to regular assessment and by the deduction of income-tax, rights of the parties are not, in any manner, adversely affected. Further, the rights of payee or recipient are fully safeguarded under Sections 195(2), 195(3) and 197. Only thing which is required to be done by them is to file an application for determination by the Assessing Officer that such sum would not be chargeable to tax in the case of recipient, or for determination of appropriate proportion of such sum so chargeable, or for grant of certificate authorising recipient to receive the amount without deduction of tax, or deduction of income-tax at any lower rates or no deduction. On such determination, tax at appropriate rate could be deducted at the source. If no such application is filed income tax on such sum is to be deducted and it is the statutory obligation of the person responsible for paying such sum to deduct tax thereon before making payment. He has to discharge the obligation of tax deduction at source. 10. The High Court of Calcutta considered and interpreted similar provision Section 18(3B) of the Income Tax Act, 1922, in the case of Ray and Co. (India) Private Limited v. Mukherjee, ITO 1959(36 ITR 365, and rightly held : if chargeable under the provisions of this Act means actually liable to be assessed to tax, in other words, if the sum contemplated is taxable income a difficulty is undoubtedly created as to complying with the provisions of the section. 11. The High Court further held that section 18(3B) contemplated not merely amounts, the whole of which was taxable without deduction, but amounts of a mixed composition, a part of which only might turn out to be taxable income, as well; and the disbursement, which were of the nature of gross revenue receipts, were yet sums chargeable under the provisions of the Income Tax Act and came within the ambit of Section 18(3B) of the Act. 12. Hence, in our view there is no substance in the contention of the learned Counsel for the Appellant that the expression any other sum chargeable under the provisions of this Act would not include cases where any sum payable to the non-resident is a trading receipt which may or may not include pure income. The language of Section 195(1) for deduction of income tax by the payee is clear and unambiguous and cats an obligation to deduct appropriate tax at the rates in force. We make it clear that the learned counsel for the parties have not advanced any submissions with regard to other findings given by the High Court. 13. In this view of the matter, the answer given by the High Court that (i) the assessee who made the payments to the three non-residents was under obligation to deduct tax at source under Section 195 of the Act in respect of the sums paid to them under the contacts entered into; and (ii) the obligation of the respondent-assessee to deduct tax under Section 195 is limited only to appropriate proportion of income chargeable under the Act, are correct. | 0[ds]n (1), (2) and (3) of Section 195 and Section 197 leaves no doubt that the expression any other sum chargeable under the provisions of this Act would mean sum on whichx is leviable. In other words, the said sum is chargeable to tax and could be assessed to tax under the Act. Consideration would be whether payment of sum tot is chargeable to tax under the provisions of the Act or not ? That sum may be income or income hidden or otherwise embedded therein. If so, tax is required to be deducted on the said sum would be the income is to be computed on the basis of various provisions of the Act including provisions of computation of the business income, if the payment is trade receipt. However, what is to be deducted is income tax payable thereon at the rates in force. Under the Act, total income for the previous year would become chargeable to tax under Section 4.n (2) of Section 4 inter alia, provides that in respect of income chargeable undern (1), income tax shall be deducted at source where it is so deductible under any provision of the Act. If the sum that s to be paid to thet is chargeable to tax, tax is required to be deducted. The sum which is to be paid may be income out of different heads of income provided under Section 14 of the Act, that is to say, income from salaries, income from house property, profits and gains of business or profession, capital gains and income from other sources. The scheme of tax deduction at source applies not only to the amount paid which wholly bears income character such as salaries, dividends, interest of securities etc., but also to gross sums, the whole of which may not be income or profits of the recipient, such as payments to contractors ands and the payment of insurance commission. It has been contended that the sum which may be required to be paid to thet may only be a trading receipt, and, any contain a fraction of sum as taxable income. It is true that in some cases, a trading receipt may contain a fraction of sum as taxable income, but in other cases such as interest, commission, transfer of rights of patents, goodwill or drawings for plant and machinery and such other transactions, it may contain large sum as taxable income under the provisions of the Act. Whatever may be the position, if the income is from profits and gains of business, it would be computed under the Act as provided at the time of regular assessment. The purpose ofn (1) of Section 195 is to see that the sum which is chargeable under Section 4 of the Act for levy and collection of income tax, the payee should deduct income tax thereon at the rates in force, if the amount is to be paid to a. The said provision is for tentative deduction of income tax thereon subject to regular assessment and by the deduction of, rights of the parties are not, in any manner, adversely affected. Further, the rights of payee or recipient are fully safeguarded under Sections 195(2), 195(3) and 197. Only thing which is required to be done by them is to file an application for determination by the Assessing Officer that such sum would not be chargeable to tax in the case of recipient, or for determination of appropriate proportion of such sum so chargeable, or for grant of certificate authorising recipient to receive the amount without deduction of tax, or deduction ofx at any lower rates or no deduction. On such determination, tax at appropriate rate could be deducted at the source. If no such application is filed income tax on such sum is to be deducted and it is the statutory obligation of the person responsible for paying such sum to deduct tax thereon before making payment. He has to discharge the obligation of tax deduction at source10. The High Court of Calcutta considered and interpreted similar provision Section 18(3B) of the Income Tax Act, 1922, in the case of Ray and Co. (India) Private Limited v. Mukherjee, ITO 1959(36 ITR 365, and rightly held :if chargeable under the provisions of this Act means actually liable to be assessed to tax, in other words, if the sum contemplated is taxable income a difficulty is undoubtedly created as to complying with the provisions of the section11. The High Court further held that section 18(3B) contemplated not merely amounts, the whole of which was taxable without deduction, but amounts of a mixed composition, a part of which only might turn out to be taxable income, as well; and the disbursement, which were of the nature of gross revenue receipts, were yet sums chargeable under the provisions of the Income Tax Act and came within the ambit of Section 18(3B) of the Act12. Hence, in our view there is no substance in the contention of the learned Counsel for the Appellant that the expression any other sum chargeable under the provisions of this Act would not include cases where any sum payable to thet is a trading receipt which may or may not include pure income. The language of Section 195(1) for deduction of income tax by the payee is clear and unambiguous and cats an obligation to deduct appropriate tax at the rates in force. We make it clear that the learned counsel for the parties have not advanced any submissions with regard to other findings given by the High Court13. In this view of the matter, the answer given by the High Court that (i) the assessee who made the payments to the threes was under obligation to deduct tax at source under Section 195 of the Act in respect of the sums paid to them under the contacts entered into; and (ii) the obligation of thee to deduct tax under Section 195 is limited only to appropriate proportion of income chargeable under the Act, are correct. | 0 | 4,335 | 1,130 | ### 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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of this Act would mean sum on which income-tax is leviable. In other words, the said sum is chargeable to tax and could be assessed to tax under the Act. Consideration would be whether payment of sum to non-resident is chargeable to tax under the provisions of the Act or not ? That sum may be income or income hidden or otherwise embedded therein. If so, tax is required to be deducted on the said sum would be the income is to be computed on the basis of various provisions of the Act including provisions of computation of the business income, if the payment is trade receipt. However, what is to be deducted is income tax payable thereon at the rates in force. Under the Act, total income for the previous year would become chargeable to tax under Section 4. Sub-section (2) of Section 4 inter alia, provides that in respect of income chargeable under Sub-section (1), income tax shall be deducted at source where it is so deductible under any provision of the Act. If the sum that s to be paid to the non-resident is chargeable to tax, tax is required to be deducted. The sum which is to be paid may be income out of different heads of income provided under Section 14 of the Act, that is to say, income from salaries, income from house property, profits and gains of business or profession, capital gains and income from other sources. The scheme of tax deduction at source applies not only to the amount paid which wholly bears income character such as salaries, dividends, interest of securities etc., but also to gross sums, the whole of which may not be income or profits of the recipient, such as payments to contractors and sub-contractors and the payment of insurance commission. It has been contended that the sum which may be required to be paid to the non-resident may only be a trading receipt, and, any contain a fraction of sum as taxable income. It is true that in some cases, a trading receipt may contain a fraction of sum as taxable income, but in other cases such as interest, commission, transfer of rights of patents, goodwill or drawings for plant and machinery and such other transactions, it may contain large sum as taxable income under the provisions of the Act. Whatever may be the position, if the income is from profits and gains of business, it would be computed under the Act as provided at the time of regular assessment. The purpose of sub-section (1) of Section 195 is to see that the sum which is chargeable under Section 4 of the Act for levy and collection of income tax, the payee should deduct income tax thereon at the rates in force, if the amount is to be paid to a non-resident. The said provision is for tentative deduction of income tax thereon subject to regular assessment and by the deduction of income-tax, rights of the parties are not, in any manner, adversely affected. Further, the rights of payee or recipient are fully safeguarded under Sections 195(2), 195(3) and 197. Only thing which is required to be done by them is to file an application for determination by the Assessing Officer that such sum would not be chargeable to tax in the case of recipient, or for determination of appropriate proportion of such sum so chargeable, or for grant of certificate authorising recipient to receive the amount without deduction of tax, or deduction of income-tax at any lower rates or no deduction. On such determination, tax at appropriate rate could be deducted at the source. If no such application is filed income tax on such sum is to be deducted and it is the statutory obligation of the person responsible for paying such sum to deduct tax thereon before making payment. He has to discharge the obligation of tax deduction at source. 10. The High Court of Calcutta considered and interpreted similar provision Section 18(3B) of the Income Tax Act, 1922, in the case of Ray and Co. (India) Private Limited v. Mukherjee, ITO 1959(36 ITR 365, and rightly held : if chargeable under the provisions of this Act means actually liable to be assessed to tax, in other words, if the sum contemplated is taxable income a difficulty is undoubtedly created as to complying with the provisions of the section. 11. The High Court further held that section 18(3B) contemplated not merely amounts, the whole of which was taxable without deduction, but amounts of a mixed composition, a part of which only might turn out to be taxable income, as well; and the disbursement, which were of the nature of gross revenue receipts, were yet sums chargeable under the provisions of the Income Tax Act and came within the ambit of Section 18(3B) of the Act. 12. Hence, in our view there is no substance in the contention of the learned Counsel for the Appellant that the expression any other sum chargeable under the provisions of this Act would not include cases where any sum payable to the non-resident is a trading receipt which may or may not include pure income. The language of Section 195(1) for deduction of income tax by the payee is clear and unambiguous and cats an obligation to deduct appropriate tax at the rates in force. We make it clear that the learned counsel for the parties have not advanced any submissions with regard to other findings given by the High Court. 13. In this view of the matter, the answer given by the High Court that (i) the assessee who made the payments to the three non-residents was under obligation to deduct tax at source under Section 195 of the Act in respect of the sums paid to them under the contacts entered into; and (ii) the obligation of the respondent-assessee to deduct tax under Section 195 is limited only to appropriate proportion of income chargeable under the Act, are correct.
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of Section 195 and Section 197 leaves no doubt that the expression any other sum chargeable under the provisions of this Act would mean sum on whichx is leviable. In other words, the said sum is chargeable to tax and could be assessed to tax under the Act. Consideration would be whether payment of sum tot is chargeable to tax under the provisions of the Act or not ? That sum may be income or income hidden or otherwise embedded therein. If so, tax is required to be deducted on the said sum would be the income is to be computed on the basis of various provisions of the Act including provisions of computation of the business income, if the payment is trade receipt. However, what is to be deducted is income tax payable thereon at the rates in force. Under the Act, total income for the previous year would become chargeable to tax under Section 4.n (2) of Section 4 inter alia, provides that in respect of income chargeable undern (1), income tax shall be deducted at source where it is so deductible under any provision of the Act. If the sum that s to be paid to thet is chargeable to tax, tax is required to be deducted. The sum which is to be paid may be income out of different heads of income provided under Section 14 of the Act, that is to say, income from salaries, income from house property, profits and gains of business or profession, capital gains and income from other sources. The scheme of tax deduction at source applies not only to the amount paid which wholly bears income character such as salaries, dividends, interest of securities etc., but also to gross sums, the whole of which may not be income or profits of the recipient, such as payments to contractors ands and the payment of insurance commission. It has been contended that the sum which may be required to be paid to thet may only be a trading receipt, and, any contain a fraction of sum as taxable income. It is true that in some cases, a trading receipt may contain a fraction of sum as taxable income, but in other cases such as interest, commission, transfer of rights of patents, goodwill or drawings for plant and machinery and such other transactions, it may contain large sum as taxable income under the provisions of the Act. Whatever may be the position, if the income is from profits and gains of business, it would be computed under the Act as provided at the time of regular assessment. The purpose ofn (1) of Section 195 is to see that the sum which is chargeable under Section 4 of the Act for levy and collection of income tax, the payee should deduct income tax thereon at the rates in force, if the amount is to be paid to a. The said provision is for tentative deduction of income tax thereon subject to regular assessment and by the deduction of, rights of the parties are not, in any manner, adversely affected. Further, the rights of payee or recipient are fully safeguarded under Sections 195(2), 195(3) and 197. Only thing which is required to be done by them is to file an application for determination by the Assessing Officer that such sum would not be chargeable to tax in the case of recipient, or for determination of appropriate proportion of such sum so chargeable, or for grant of certificate authorising recipient to receive the amount without deduction of tax, or deduction ofx at any lower rates or no deduction. On such determination, tax at appropriate rate could be deducted at the source. If no such application is filed income tax on such sum is to be deducted and it is the statutory obligation of the person responsible for paying such sum to deduct tax thereon before making payment. He has to discharge the obligation of tax deduction at source10. The High Court of Calcutta considered and interpreted similar provision Section 18(3B) of the Income Tax Act, 1922, in the case of Ray and Co. (India) Private Limited v. Mukherjee, ITO 1959(36 ITR 365, and rightly held :if chargeable under the provisions of this Act means actually liable to be assessed to tax, in other words, if the sum contemplated is taxable income a difficulty is undoubtedly created as to complying with the provisions of the section11. The High Court further held that section 18(3B) contemplated not merely amounts, the whole of which was taxable without deduction, but amounts of a mixed composition, a part of which only might turn out to be taxable income, as well; and the disbursement, which were of the nature of gross revenue receipts, were yet sums chargeable under the provisions of the Income Tax Act and came within the ambit of Section 18(3B) of the Act12. Hence, in our view there is no substance in the contention of the learned Counsel for the Appellant that the expression any other sum chargeable under the provisions of this Act would not include cases where any sum payable to thet is a trading receipt which may or may not include pure income. The language of Section 195(1) for deduction of income tax by the payee is clear and unambiguous and cats an obligation to deduct appropriate tax at the rates in force. We make it clear that the learned counsel for the parties have not advanced any submissions with regard to other findings given by the High Court13. In this view of the matter, the answer given by the High Court that (i) the assessee who made the payments to the threes was under obligation to deduct tax at source under Section 195 of the Act in respect of the sums paid to them under the contacts entered into; and (ii) the obligation of thee to deduct tax under Section 195 is limited only to appropriate proportion of income chargeable under the Act, are correct.
|
World Wide Agencies Pvt. Ltd. And Anr Vs. Mrs. Margarat T. Desor And Ors | of the matter, it is not necessary for the present purpose to examine this question from the angle in which the learned Single Judge of the Calcutta High Court analysed the position in the case of Kedar Nath Agarwal v. Jay Engineering Works Ltd. and Ors. [1963 (33) Company Cases 102], to which our attention was drawn. 25. Admittedly in the present case, the lagal representatives have been more than anxious to get their names put on the register of members in place of deceased member, who was the Managing Director and Chairman of the company and had the controlling interest. It would, therefore, be wrong to insist their names must be first put on the register before they can move an application under Sections 397 and 398 of the Act. This would frustrate the very purpose of the necessity of action. It was contended on behalf of the appellant before the High Court that if legal representatives who were only potential members or persons likely to come on the register of members, are permitted to file an application under Sections 397 and 398 of the Act, it would create havoc, as then persons having blank transfer forms signed by members, and as such having a financial interest, could also claim to move an application under Sections 397 and 398 of the Act. The High Court held that this is a fallacy, that in the case of persons having blank transfer forms, signed by members, it is the members themselves who are shown on the register of members and they are different from the persons with the blank transfer forms whereas in the case of legal representatives it is the deceased member who is shown on the register and the legal representatives are in effect exercising his right. A right has devolved on them through the death of the member whose name is still on the register. In our opinion, therefore, the High Court was pre-eminently right in holding that the legal representatives of deceased member whose name is” still on the register of members are entitled to petition under Sections 397 and 398 of the Act. In the view we have taken, it is not necessary to consider the contention whether as on the date of petition, they were not members. In that view of the matter, it is not necessary for us to consider the decision of this Court in Rajahmundry Electric Supply Corpn. Ltd. v. A Mageshwara Rao and Ors. [AIR 1956 SC 213 ]. In view of the observations of this Court in Life Insurance Corporation of ‘India v. Escorts Limited and Ors. [AIR 1986 SC 1370 at p. 1412], it is not necessary, in our opinion, to consider the contention as made o n behalf of the appellant before the High Court that the permission of the Reserve Bank of India had been erroneously obtained and consequently amounts to no permission. In the present context, we are of the opinion that the High Court was right in the view it took on the first aspect of the matter. 26. The second question was whether a combined petition under Sections 397, 398 and 433(f) of the Act was maintainable. In view of the observations of this Court in Shanti Prasad Jain v. Kalinga Tubes [1965 (35) Company Cases 363] and the reasoning of the Bombay High Court in Bilasari Joharmal and Ors. v. Akola Electric Supply Co. Pvt. Ltd. [28 Company Cases 549], we are of the opinion that the averments which a petitioner would have to make to invoke the jurisdiction under Sections 397 and 398 are not destructive of the averments which are required to be made in a case for winding up under Section 433(f) of the Act on the just and equitable ground, though they may appear to be contradictory. As Halsbury’s Laws of England, 4th Edition, Volume 7, at p. 604-605, discusses that the prayer must be made stating that the affairs are such which fulfil the requirement of winding up but to wind up the company would unfairly prejudice that part of the members, but otherwise the facts would justify the making of a winding up order on the ground that it was just and equitable that the company should be wound up, the Court may, with a view to bringing to an end the matters complained of, make such order as it thinks fit, whether for regulating the conduct of the company’s affairs in future or otherwise. We are of the opinion that averments which a petitioner would have to make to invoke the jurisdiction of Sections 397 and 398 of the Act are not destructive of the averments which are required to be made in a case for winding up under Section 433(f) on the just and equitable ground, though they may appear to be rather conflicting if not contradictory. 27. We are in agreement with the High Court that the petition must proceed upto certain stage which is common to both winding up and though there may be some difference in procedure to be adopted, it is not such which is irreconcilable and cannot simultaneously be gone into. Indeed these are made in the manner indicated before. It has to be borne in mind that a discretion is conferred on the court and it is only when the Court is satisfied that the facts justify the making of a winding up order on the ground that it is just and equitable that the company should be wound up, but if the Court is further of the opinion that it would be a remedy worse than the disease, then the Court can examine whether the alternative relief by way of a direction under Section 397 can be granted. This is a well accepted remedy exercised by the Courts. We are, therefore, of the opinion that the High Court was right in the view that a composite petition under Sections 397, 398 and 433(f) of the Act is maintainable. | 0[ds]We are of the opinion that averments which a petitioner would have to make to invoke the jurisdiction of Sections 397 and 398 of the Act are not destructive of the averments which are required to be made in a case for winding up under Section 433(f) on the just and equitable ground, though they may appear to be rather conflicting if not contradictory.We are in agreement with the High Court that the petition must proceed upto certain stage which is common to both winding up and though there may be some difference in procedure to be adopted, it is not such which is irreconcilable and cannot simultaneously be gone into. Indeed these are made in the manner indicated before. It has to be borne in mind that a discretion is conferred on the court and it is only when the Court is satisfied that the facts justify the making of a winding up order on the ground that it is just and equitable that the company should be wound up, but if the Court is further of the opinion that it would be a remedy worse than the disease, then the Court can examine whether the alternative relief by way of a direction under Section 397 can be granted. This is a well accepted remedy exercised by the Courts. We are, therefore, of the opinion that the High Court was right in the view that a composite petition under Sections 397, 398 and 433(f) of the Act isour opinion, therefore, the High Court wasright in holding that the legal representatives of deceased member whose namestill on the register of members are entitled to petition under Sections 397 and 398 of the Act. In the view we have taken, it is not necessary to consider the contention whether as on the date of petition, they were not members. In that view of the matter, it is not necessary for us to consider the decision of this Court in Rajahmundry Electric Supply Corpn. Ltd. v. A Mageshwara Rao and Ors. [AIR 1956 SC 213 ]. In view of the observations of this Court in Life Insurance Corporation of ‘India v. Escorts Limited and Ors. [AIR 1986 SC 1370 at p. 1412], it is not necessary, in our opinion, to consider the contention as made o n behalf of the appellant before the High Court that the permission of the Reserve Bank of India had been erroneously obtained and consequently amounts to no permission. In the present context, we are of the opinion that the High Court was right in the view it took on the first aspect of the matter.It is true that it must be a member and Section 41 of the Act provides that a member of a company is a person who has applied in writing andname is entered in the register ofis entitled to move the petition. It appears in this case that names of respondent Nos. 2 and 3 had not that been entered in the register of members at the relevant time when the application was made. But the name of the Late Mr. S.K. Desor was still on the register of members and the requisite shareholding for moving a petition under Sections. 397 and 398 of the Act was held by him. This question, though res integra so far as this country is concerned, has been considered in England, where Pennycuick, J. had occasion to consider this in Re Jermyn Street Turkish Baths Ltd. [1970 (3) All E.R. 57]. The Company there was incorporated in 1946 and represented a joint venture by L and S. In 1952, S. transferred his shareholding to Mrs. P who became a director of the company. L died in 1953 and thereafter Mrs. P was mainly responsible for theaffairs. The petitioners therein were appointed administrators inestate in 1960 and in 1961, at their request, the names of the petitioners therein were entered in the register of members of the company against the .name of L as administrators of L. On the questions whether the entry constituted merely a note of the grant of administration or the registration of the petitioners as members, and whether the petitioners were members of the company for the purposes of presenting a petition under Section 210 of the English Companies Act at p. 65 of the report, Pennycuick, J. noted that it was contended before him that the petitioners therein were not members of the company and hence had no locus standi to present the petition bearing in mind that petition under Section 210 of the English Companies Act could only be presented by a member of the company. In the facts of that case, Pennycuick, J. Held that the petitioners were duly registered as members of the company but he proceeded to hold that even if it were so, the personal representatives of a deceased member must be regarded as members of the company for the purposes of Section 210 of the English Companies Act. In this connection, inference was made to the decision of Buckley, J. in Re Bayswater Trading Co. Ltd, [1970 (1) All E.R. 608], where at p. 609 of the report, it was held thatwould include representative of a deceased member for the purpose of Section 353 of the English Companies Act. This judgment of Pennycuick, J. went up in appeal to the Court of Appeal and it was reversed. See Re Jermyn Street Turkish Baths Ltd. [1971 (3) All E.R. 184]. But on the point whether the representative of a deceased member can maintain an action under Section 210 of the English Companies Act, the views of Pennycuick, J. were not reversed or modified. Mr. Nariman submittedthe observations of Pennycuick, J. were obiter for the decision of the case. We are unable to agree. Indeed, this was a point specifically referred to by Pennycuick, J. as being raised and specifically decided. But we need not detain ourselves with this controveresy because the decisions of the English Courts are not binding in the courts of India. But the observations or the reasoning are of persuasive value. We are clearly of the opinion that having regard to the scheme and the purpose of Sections 397 and 398 of thethe reasoning on a para materia provision of the English Act would be a valuable guide. The said construction, appears to us, to further the purpose intended to be fulfilled by petitions under ss. 397 and 398 of the Act. It facilitates solution of problems in case of oppression of the minorities when the member is dead and his heirs of legal representatives are yet to be substituted. This is an equitable and just construction. This construction, as suggested by Pennycuick, J. does not militate against either equity or justice of the such situation. We would, therefore, adhere to that construction.We do not agree for the reason mentioned before. It further appears to us the Australian judgment does not reconcile to logic in accepting that legal representative can petition forwhich is called the, but would refuse the lesser and alternative remedy of seeking relief against oppression and mismanagement though the latter remedy requires establishment ofon just and equitable grounds as a precondition for its invocation. It would be rather incongruous to hold that the case foron just and equitable ground can be made out by the legal representatives under Section 439(4)(b) of the Act but not the other. This does not appear to be logical. It appears to us that to hold that the legal representatives of a deceased shareholder could not be given the same right of a member under Sections 397 and 398 of the Act would be taking aview which does not advance the cause of equity or justice. The High Court in its judgment under appeal proceeded on the basis that legal representatives of a deceased member represent the estate of that member whose name is on the register of members. When the member dies, his estate is entrusted in the legal representatives. When, therefore, these vestings are illegally or wrongfully affected, the estate through the legal representatives must be enabled to petition in respect of oppression and mismanagement and it is as if the estate stands in the shoes of the deceased member. We are of the opinion that this view is a correct view. It may be mentioned in this connection that succession is not kept in abeyance and the property of the deceased member vests in the legal representatives on the death of the deceased and they should be permitted to act for the deceased member for the purpose of transfer of shares under Section 109 of the Act.Admittedly in the present case, the lagal representatives have been more than anxious to get their names put on the register of members in place of deceased member, who was the Managing Director and Chairman of the company and had the controlling interest. It would, therefore, be wrong to insist their names must be first put on the register before they can move an application under Sections 397 and 398 of the Act. This would frustrate the very purpose of the necessity of action. It was contended on behalf of the appellant before the High Court that if legal representatives who were only potential members or persons likely to come on the register of members, are permitted to file an application under Sections 397 and 398 of the Act, it would create havoc, as then persons having blank transfer forms signed by members, and as such having a financial interest, could also claim to move an application under Sections 397 and 398 of the Act. The High Court held that this is a fallacy, that in the case of persons having blank transfer forms, signed by members, it is the members themselves who are shown on the register of members and they are different from the persons with the blank transfer forms whereas in the case of legal representatives it is the deceased member who is shown on the register and the legal representatives are in effect exercising his right. A right has devolved on them through the death of the member whose name is still on the register. Inour opinion, therefore, the High Court wasright in holding that the legal representatives of deceased member whose namestill on the register of members are entitled to petition under Sections 397 and 398 of the Act. In the view we have taken, it is not necessary to consider the contention whether as on the date of petition, they were not members. In that view of the matter, it is not necessary for us to consider the decision of this Court in Rajahmundry Electric Supply Corpn. Ltd. v. A Mageshwara Rao and Ors. [AIR 1956 SC 213 ]. In view of the observations of this Court in Life Insurance Corporation of ‘India v. Escorts Limited and Ors. [AIR 1986 SC 1370 at p. 1412], it is not necessary, in our opinion, to consider the contention as made o n behalf of the appellant before the High Court that the permission of the Reserve Bank of India had been erroneously obtained and consequently amounts to no permission. In the present context, we are of the opinion that the High Court was right in the view it took on the first aspect of the matter.We are in agreement with the High Court that the petition must proceed upto certain stage which is common to both winding up and though there may be some difference in procedure to be adopted, it is not such which is irreconcilable and cannot simultaneously be gone into. Indeed these are made in the manner indicated before. It has to be borne in mind that a discretion is conferred on the court and it is only when the Court is satisfied that the facts justify the making of a winding up order on the ground that it is just and equitable that the company should be wound up, but if the Court is further of the opinion that it would be a remedy worse than the disease, then the Court can examine whether the alternative relief by way of a direction under Section 397 can be granted. This is a well accepted remedy exercised by the Courts. We are, therefore, of the opinion that the High Court was right in the view that a composite petition under Sections 397, 398 and 433(f) of the Act is | 0 | 6,514 | 2,264 | ### 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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of the matter, it is not necessary for the present purpose to examine this question from the angle in which the learned Single Judge of the Calcutta High Court analysed the position in the case of Kedar Nath Agarwal v. Jay Engineering Works Ltd. and Ors. [1963 (33) Company Cases 102], to which our attention was drawn. 25. Admittedly in the present case, the lagal representatives have been more than anxious to get their names put on the register of members in place of deceased member, who was the Managing Director and Chairman of the company and had the controlling interest. It would, therefore, be wrong to insist their names must be first put on the register before they can move an application under Sections 397 and 398 of the Act. This would frustrate the very purpose of the necessity of action. It was contended on behalf of the appellant before the High Court that if legal representatives who were only potential members or persons likely to come on the register of members, are permitted to file an application under Sections 397 and 398 of the Act, it would create havoc, as then persons having blank transfer forms signed by members, and as such having a financial interest, could also claim to move an application under Sections 397 and 398 of the Act. The High Court held that this is a fallacy, that in the case of persons having blank transfer forms, signed by members, it is the members themselves who are shown on the register of members and they are different from the persons with the blank transfer forms whereas in the case of legal representatives it is the deceased member who is shown on the register and the legal representatives are in effect exercising his right. A right has devolved on them through the death of the member whose name is still on the register. In our opinion, therefore, the High Court was pre-eminently right in holding that the legal representatives of deceased member whose name is” still on the register of members are entitled to petition under Sections 397 and 398 of the Act. In the view we have taken, it is not necessary to consider the contention whether as on the date of petition, they were not members. In that view of the matter, it is not necessary for us to consider the decision of this Court in Rajahmundry Electric Supply Corpn. Ltd. v. A Mageshwara Rao and Ors. [AIR 1956 SC 213 ]. In view of the observations of this Court in Life Insurance Corporation of ‘India v. Escorts Limited and Ors. [AIR 1986 SC 1370 at p. 1412], it is not necessary, in our opinion, to consider the contention as made o n behalf of the appellant before the High Court that the permission of the Reserve Bank of India had been erroneously obtained and consequently amounts to no permission. In the present context, we are of the opinion that the High Court was right in the view it took on the first aspect of the matter. 26. The second question was whether a combined petition under Sections 397, 398 and 433(f) of the Act was maintainable. In view of the observations of this Court in Shanti Prasad Jain v. Kalinga Tubes [1965 (35) Company Cases 363] and the reasoning of the Bombay High Court in Bilasari Joharmal and Ors. v. Akola Electric Supply Co. Pvt. Ltd. [28 Company Cases 549], we are of the opinion that the averments which a petitioner would have to make to invoke the jurisdiction under Sections 397 and 398 are not destructive of the averments which are required to be made in a case for winding up under Section 433(f) of the Act on the just and equitable ground, though they may appear to be contradictory. As Halsbury’s Laws of England, 4th Edition, Volume 7, at p. 604-605, discusses that the prayer must be made stating that the affairs are such which fulfil the requirement of winding up but to wind up the company would unfairly prejudice that part of the members, but otherwise the facts would justify the making of a winding up order on the ground that it was just and equitable that the company should be wound up, the Court may, with a view to bringing to an end the matters complained of, make such order as it thinks fit, whether for regulating the conduct of the company’s affairs in future or otherwise. We are of the opinion that averments which a petitioner would have to make to invoke the jurisdiction of Sections 397 and 398 of the Act are not destructive of the averments which are required to be made in a case for winding up under Section 433(f) on the just and equitable ground, though they may appear to be rather conflicting if not contradictory. 27. We are in agreement with the High Court that the petition must proceed upto certain stage which is common to both winding up and though there may be some difference in procedure to be adopted, it is not such which is irreconcilable and cannot simultaneously be gone into. Indeed these are made in the manner indicated before. It has to be borne in mind that a discretion is conferred on the court and it is only when the Court is satisfied that the facts justify the making of a winding up order on the ground that it is just and equitable that the company should be wound up, but if the Court is further of the opinion that it would be a remedy worse than the disease, then the Court can examine whether the alternative relief by way of a direction under Section 397 can be granted. This is a well accepted remedy exercised by the Courts. We are, therefore, of the opinion that the High Court was right in the view that a composite petition under Sections 397, 398 and 433(f) of the Act is maintainable.
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It facilitates solution of problems in case of oppression of the minorities when the member is dead and his heirs of legal representatives are yet to be substituted. This is an equitable and just construction. This construction, as suggested by Pennycuick, J. does not militate against either equity or justice of the such situation. We would, therefore, adhere to that construction.We do not agree for the reason mentioned before. It further appears to us the Australian judgment does not reconcile to logic in accepting that legal representative can petition forwhich is called the, but would refuse the lesser and alternative remedy of seeking relief against oppression and mismanagement though the latter remedy requires establishment ofon just and equitable grounds as a precondition for its invocation. It would be rather incongruous to hold that the case foron just and equitable ground can be made out by the legal representatives under Section 439(4)(b) of the Act but not the other. This does not appear to be logical. It appears to us that to hold that the legal representatives of a deceased shareholder could not be given the same right of a member under Sections 397 and 398 of the Act would be taking aview which does not advance the cause of equity or justice. The High Court in its judgment under appeal proceeded on the basis that legal representatives of a deceased member represent the estate of that member whose name is on the register of members. When the member dies, his estate is entrusted in the legal representatives. When, therefore, these vestings are illegally or wrongfully affected, the estate through the legal representatives must be enabled to petition in respect of oppression and mismanagement and it is as if the estate stands in the shoes of the deceased member. We are of the opinion that this view is a correct view. It may be mentioned in this connection that succession is not kept in abeyance and the property of the deceased member vests in the legal representatives on the death of the deceased and they should be permitted to act for the deceased member for the purpose of transfer of shares under Section 109 of the Act.Admittedly in the present case, the lagal representatives have been more than anxious to get their names put on the register of members in place of deceased member, who was the Managing Director and Chairman of the company and had the controlling interest. It would, therefore, be wrong to insist their names must be first put on the register before they can move an application under Sections 397 and 398 of the Act. This would frustrate the very purpose of the necessity of action. It was contended on behalf of the appellant before the High Court that if legal representatives who were only potential members or persons likely to come on the register of members, are permitted to file an application under Sections 397 and 398 of the Act, it would create havoc, as then persons having blank transfer forms signed by members, and as such having a financial interest, could also claim to move an application under Sections 397 and 398 of the Act. The High Court held that this is a fallacy, that in the case of persons having blank transfer forms, signed by members, it is the members themselves who are shown on the register of members and they are different from the persons with the blank transfer forms whereas in the case of legal representatives it is the deceased member who is shown on the register and the legal representatives are in effect exercising his right. A right has devolved on them through the death of the member whose name is still on the register. Inour opinion, therefore, the High Court wasright in holding that the legal representatives of deceased member whose namestill on the register of members are entitled to petition under Sections 397 and 398 of the Act. In the view we have taken, it is not necessary to consider the contention whether as on the date of petition, they were not members. In that view of the matter, it is not necessary for us to consider the decision of this Court in Rajahmundry Electric Supply Corpn. Ltd. v. A Mageshwara Rao and Ors. [AIR 1956 SC 213 ]. In view of the observations of this Court in Life Insurance Corporation of ‘India v. Escorts Limited and Ors. [AIR 1986 SC 1370 at p. 1412], it is not necessary, in our opinion, to consider the contention as made o n behalf of the appellant before the High Court that the permission of the Reserve Bank of India had been erroneously obtained and consequently amounts to no permission. In the present context, we are of the opinion that the High Court was right in the view it took on the first aspect of the matter.We are in agreement with the High Court that the petition must proceed upto certain stage which is common to both winding up and though there may be some difference in procedure to be adopted, it is not such which is irreconcilable and cannot simultaneously be gone into. Indeed these are made in the manner indicated before. It has to be borne in mind that a discretion is conferred on the court and it is only when the Court is satisfied that the facts justify the making of a winding up order on the ground that it is just and equitable that the company should be wound up, but if the Court is further of the opinion that it would be a remedy worse than the disease, then the Court can examine whether the alternative relief by way of a direction under Section 397 can be granted. This is a well accepted remedy exercised by the Courts. We are, therefore, of the opinion that the High Court was right in the view that a composite petition under Sections 397, 398 and 433(f) of the Act is
|
Gagan Harsh Sharma & Another Vs. The State of Maharashtra & Another | the Judges and can give little guidance for future decisions. A more serious consequence is the fact that a decision in one case that two offences are substantially the same may compel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible.Further in case of in State of Rajasthan v. Hat Singh [(2003) 2 SCC 152 : 2003 SCC (Cri) 451 ] , a person was prosecuted for violation of prohibitory order issued by the Collector under Sections 5 and 6 of the Rajasthan Sati (Prevention) Ordinance, 1987. Against the said Ordinance, mass rally took place which led to the registration of FIRs against various persons for violation of prohibitory order under Sections 5 and 6 of the Act. Persons, who were arrested, moved a petition challenging the vires of the Ordinance and the Act. The High Court upholding the vires of the Ordinance/Act held that the provisions of Sections 5 and 6 overlapped each other and that a person could be found guilty only of the offence of contravening a prohibitory order under either Section 6(1) or Section 6(2) of the Act.The Apex Court held as under:14. We are, therefore, of the opinion that in a given case, same set of facts may give rise to an offence punishable under Section 5 and Section 6(3) both. There is nothing unconstitutional or illegal about it. So also an act which is alleged to be an offence under Section 6(3) of the Act and if for any reason prosecution under Section 6(3) does not end in conviction, if the ingredients of offence under Section 5 are made out, may still be liable to be punished under Section 5 of the Act. We, therefore, do not agree with the High Court to the extent to which it has been held that once a prohibitory order under subsection (1) or (2) has been issued, then a criminal act done after the promulgation of the prohibitory order can be punished only under Section 6(3) and in spite of prosecution under Section 6(3) failing, on the same set of facts the person proceeded against cannot be held punishable under Section 5 of the Act although the ingredients of Section 5 are fully made out.27. Applying the aforesaid principles to the facts involved in the case, perusal of the complaint would reveal that the allegations relate to the use of the data code by the employees of the complainant company by accessing the Code and stealing the said data by using the computer source code. The Act of accessing or securing access to computer/computer system or computer network or computer resources by any person without permission of the owner or any person who is in charge of the computer, computer system, computer network or downloading of any such data or information from computer in a similar manner falls within the purview of Section 43 of the Information Technology Act, 2000. When such Act is done dishonestly and fraudulently it would attract the punishment under Section 66 of the Information Technology Act, such Act being held to be an offence. The ingredients of dishonesty and fraudulently are the same which are present if the person is charged with Section 420 of the Indian Penal Code. The offence of Section 379 in terms of technology is also covered under Section 43. Further, as far as Section 408 is concerned which relates to criminal breach of trust, by a clerk or servant who is entrusted in such capacity with the property or with any dominion over property, would also fall within the purview of Section 43 would intents to cover any act of accessing a computer by a person without permission of the owner or a person in charge of computer and/or stealing of any data, computer data base or any information from such computer or a computer system including information or data held or stored in any removable storage medium and if it is done with fraudulent and dishonest intention then it amounts to an offence. The ingredients of an offences under which are attracted by invoking and applying the Section 420, 408, 379 of the Indian Penal Code are covered by Section 66 of the Information Technology Act, 2000 and prosecuting the petitioners under the both Indian Penal Code and Information Technology Act would be a brazen violation of protection against double jeopardy.28. In such circumstances if the special enactment in form of the Information Technology Act contains a special mechanism to deal with the offences falling within the purview of Information Technology Act, then the invocation and application of the provisions of the Indian Penal Code being applicable to the same set of facts is totally uncalled for. Though the learned APP as well as Shri.Gupte has vehemently argued that the prosecution under the provisions of the Indian Penal Code can be continued and at the time of taking cognizance the Competent Court can determine the provisions of which enactments are attracted and it is too premature to exclude the investigation in the offences constituted under the Indian Penal Code, we are not ready to accept the said contention of the learned Senior Counsel, specifically in the light of the observations of the Honble Apex Court in the case of Sharat Babu Digumarti (Supra). We are of the specific opinion that it is not permissible to merely undergo the rigmarole of investigation although it is not open for the Investigating Officer to invoke and apply the provisions of the Indian Penal Code, in light of the specific provisions contained in the Information Technology Act, 2000 and leave it to the discretion of the Police Authorities to decide in which direction the investigation is to be proceeded. The Information Technology Act, 2000 being a special enactment, it requires an able investigation keeping in mind the purpose of the enactment and to nab the new venturing of crimes with the assistance of the Technology. | 1[ds]We are inclined to think so as it is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent. This is the mandate behind Section 81 of the IT Act. The additional protection granted by the IT Act would apply.In view of the aforesaid analysis and the authorities referred to hereinabove, we are of the considered opinion that the High Court has fallen into error that though charge has not been made out under Section 67 of the IT Act, yet the appellant could be proceeded under Section 292 IPC.11. Reading of the said judgment, makes is clear that the Honble Apex Court had considered the effect of the overriding provisions contained in the Information Technology Act and has observed that all the provisions in the enactment are of significance particularly if the alleged offences pertains to electronic record. By observing that the Information Technology Act is a special enactment and it contain special provision, the Honble Apex Court has also considered the effect of Section 79 contained in the Information Technology Act which is enacted for a specific purpose and has observed that the mandate behind Section 81 of the Information Technology Act needs to be understood in its proper perspective. It referred to the earlier precedents on the point where a special statute is pitted against a General enactment and thereafter has concluded by making reference Section 79 and 81 that once the special provisions are accorded overriding effect to cover a criminal Act, the offender gets out of the net of the Indian Penal Code and in the case in hand of Section 292.The reliance placed by the learned counsel Shri.Gupte judgment in case of The State of MaharashtraAnr. V/s. Sayyad Hassan Sayyed SubhanOrs (Criminal Appeal No.1195 of 2018 of SCC delivered on 20-09-2018), in our view it is not applicable to the present case in light of the direct pronouncement of the Honble Apex Court in case of Sharat Babu Digumarti (Supra). In the case relied upon by the learned Senior Counsel the issue involved was whether an act or omission can constitute an offence under the Indian Penal Code and at the same time under any other law and in the said case under the Food and Safety Standards Act, 2006.The aforesaid judgment of the Honble Apex Court is therefore clearly distinguishable on facts but even the said judgment of the Honble Apex Court reiterates the settled position of law that where an act or an omission constitutes for an offence under two enactments the offender may be punished under either or both enactment but was not liable to be punished twice for the same offence. It is always possible that the same set of facts can constitute offence under two different laws but a person cannot be punished twice for the said act which would constitute an offence.Applying the aforesaid principles to the facts involved in the case, perusal of the complaint would reveal that the allegations relate to the use of the data code by the employees of the complainant company by accessing the Code and stealing the said data by using the computer source code. The Act of accessing or securing access to computer/computer system or computer network or computer resources by any person without permission of the owner or any person who is in charge of the computer, computer system, computer network or downloading of any such data or information from computer in a similar manner falls within the purview of Section 43 of the Information Technology Act, 2000. When such Act is done dishonestly and fraudulently it would attract the punishment under Section 66 of the Information Technology Act, such Act being held to be an offence. The ingredients of dishonesty and fraudulently are the same which are present if the person is charged with Section 420 of the Indian Penal Code. The offence of Section 379 in terms of technology is also covered under Section 43. Further, as far as Section 408 is concerned which relates to criminal breach of trust, by a clerk or servant who is entrusted in such capacity with the property or with any dominion over property, would also fall within the purview of Section 43 would intents to cover any act of accessing a computer by a person without permission of the owner or a person in charge of computer and/or stealing of any data, computer data base or any information from such computer or a computer system including information or data held or stored in any removable storage medium and if it is done with fraudulent and dishonest intention then it amounts to an offence. The ingredients of an offences under which are attracted by invoking and applying the Section 420, 408, 379 of the Indian Penal Code are covered by Section 66 of the Information Technology Act, 2000 and prosecuting the petitioners under the both Indian Penal Code and Information Technology Act would be a brazen violation of protection against double jeopardy.28. In such circumstances if the special enactment in form of the Information Technology Act contains a special mechanism to deal with the offences falling within the purview of Information Technology Act, then the invocation and application of the provisions of the Indian Penal Code being applicable to the same set of facts is totally uncalled for. Though the learned APP as well as Shri.Gupte has vehemently argued that the prosecution under the provisions of the Indian Penal Code can be continued and at the time of taking cognizance the Competent Court can determine the provisions of which enactments are attracted and it is too premature to exclude the investigation in the offences constituted under the Indian Penal Code, we are not ready to accept the said contention of the learned Senior Counsel, specifically in the light of the observations of the Honble Apex Court in the case of Sharat Babu Digumarti (Supra). We are of the specific opinion that it is not permissible to merely undergo the rigmarole of investigation although it is not open for the Investigating Officer to invoke and apply the provisions of the Indian Penal Code, in light of the specific provisions contained in the Information Technology Act, 2000 and leave it to the discretion of the Police Authorities to decide in which direction the investigation is to be proceeded. The Information Technology Act, 2000 being a special enactment, it requires an able investigation keeping in mind the purpose of the enactment and to nab the new venturing of crimes with the assistance of the Technology. | 1 | 10,355 | 1,166 | ### 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:
the Judges and can give little guidance for future decisions. A more serious consequence is the fact that a decision in one case that two offences are substantially the same may compel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible.Further in case of in State of Rajasthan v. Hat Singh [(2003) 2 SCC 152 : 2003 SCC (Cri) 451 ] , a person was prosecuted for violation of prohibitory order issued by the Collector under Sections 5 and 6 of the Rajasthan Sati (Prevention) Ordinance, 1987. Against the said Ordinance, mass rally took place which led to the registration of FIRs against various persons for violation of prohibitory order under Sections 5 and 6 of the Act. Persons, who were arrested, moved a petition challenging the vires of the Ordinance and the Act. The High Court upholding the vires of the Ordinance/Act held that the provisions of Sections 5 and 6 overlapped each other and that a person could be found guilty only of the offence of contravening a prohibitory order under either Section 6(1) or Section 6(2) of the Act.The Apex Court held as under:14. We are, therefore, of the opinion that in a given case, same set of facts may give rise to an offence punishable under Section 5 and Section 6(3) both. There is nothing unconstitutional or illegal about it. So also an act which is alleged to be an offence under Section 6(3) of the Act and if for any reason prosecution under Section 6(3) does not end in conviction, if the ingredients of offence under Section 5 are made out, may still be liable to be punished under Section 5 of the Act. We, therefore, do not agree with the High Court to the extent to which it has been held that once a prohibitory order under subsection (1) or (2) has been issued, then a criminal act done after the promulgation of the prohibitory order can be punished only under Section 6(3) and in spite of prosecution under Section 6(3) failing, on the same set of facts the person proceeded against cannot be held punishable under Section 5 of the Act although the ingredients of Section 5 are fully made out.27. Applying the aforesaid principles to the facts involved in the case, perusal of the complaint would reveal that the allegations relate to the use of the data code by the employees of the complainant company by accessing the Code and stealing the said data by using the computer source code. The Act of accessing or securing access to computer/computer system or computer network or computer resources by any person without permission of the owner or any person who is in charge of the computer, computer system, computer network or downloading of any such data or information from computer in a similar manner falls within the purview of Section 43 of the Information Technology Act, 2000. When such Act is done dishonestly and fraudulently it would attract the punishment under Section 66 of the Information Technology Act, such Act being held to be an offence. The ingredients of dishonesty and fraudulently are the same which are present if the person is charged with Section 420 of the Indian Penal Code. The offence of Section 379 in terms of technology is also covered under Section 43. Further, as far as Section 408 is concerned which relates to criminal breach of trust, by a clerk or servant who is entrusted in such capacity with the property or with any dominion over property, would also fall within the purview of Section 43 would intents to cover any act of accessing a computer by a person without permission of the owner or a person in charge of computer and/or stealing of any data, computer data base or any information from such computer or a computer system including information or data held or stored in any removable storage medium and if it is done with fraudulent and dishonest intention then it amounts to an offence. The ingredients of an offences under which are attracted by invoking and applying the Section 420, 408, 379 of the Indian Penal Code are covered by Section 66 of the Information Technology Act, 2000 and prosecuting the petitioners under the both Indian Penal Code and Information Technology Act would be a brazen violation of protection against double jeopardy.28. In such circumstances if the special enactment in form of the Information Technology Act contains a special mechanism to deal with the offences falling within the purview of Information Technology Act, then the invocation and application of the provisions of the Indian Penal Code being applicable to the same set of facts is totally uncalled for. Though the learned APP as well as Shri.Gupte has vehemently argued that the prosecution under the provisions of the Indian Penal Code can be continued and at the time of taking cognizance the Competent Court can determine the provisions of which enactments are attracted and it is too premature to exclude the investigation in the offences constituted under the Indian Penal Code, we are not ready to accept the said contention of the learned Senior Counsel, specifically in the light of the observations of the Honble Apex Court in the case of Sharat Babu Digumarti (Supra). We are of the specific opinion that it is not permissible to merely undergo the rigmarole of investigation although it is not open for the Investigating Officer to invoke and apply the provisions of the Indian Penal Code, in light of the specific provisions contained in the Information Technology Act, 2000 and leave it to the discretion of the Police Authorities to decide in which direction the investigation is to be proceeded. The Information Technology Act, 2000 being a special enactment, it requires an able investigation keeping in mind the purpose of the enactment and to nab the new venturing of crimes with the assistance of the Technology.
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1
### Explanation:
Reading of the said judgment, makes is clear that the Honble Apex Court had considered the effect of the overriding provisions contained in the Information Technology Act and has observed that all the provisions in the enactment are of significance particularly if the alleged offences pertains to electronic record. By observing that the Information Technology Act is a special enactment and it contain special provision, the Honble Apex Court has also considered the effect of Section 79 contained in the Information Technology Act which is enacted for a specific purpose and has observed that the mandate behind Section 81 of the Information Technology Act needs to be understood in its proper perspective. It referred to the earlier precedents on the point where a special statute is pitted against a General enactment and thereafter has concluded by making reference Section 79 and 81 that once the special provisions are accorded overriding effect to cover a criminal Act, the offender gets out of the net of the Indian Penal Code and in the case in hand of Section 292.The reliance placed by the learned counsel Shri.Gupte judgment in case of The State of MaharashtraAnr. V/s. Sayyad Hassan Sayyed SubhanOrs (Criminal Appeal No.1195 of 2018 of SCC delivered on 20-09-2018), in our view it is not applicable to the present case in light of the direct pronouncement of the Honble Apex Court in case of Sharat Babu Digumarti (Supra). In the case relied upon by the learned Senior Counsel the issue involved was whether an act or omission can constitute an offence under the Indian Penal Code and at the same time under any other law and in the said case under the Food and Safety Standards Act, 2006.The aforesaid judgment of the Honble Apex Court is therefore clearly distinguishable on facts but even the said judgment of the Honble Apex Court reiterates the settled position of law that where an act or an omission constitutes for an offence under two enactments the offender may be punished under either or both enactment but was not liable to be punished twice for the same offence. It is always possible that the same set of facts can constitute offence under two different laws but a person cannot be punished twice for the said act which would constitute an offence.Applying the aforesaid principles to the facts involved in the case, perusal of the complaint would reveal that the allegations relate to the use of the data code by the employees of the complainant company by accessing the Code and stealing the said data by using the computer source code. The Act of accessing or securing access to computer/computer system or computer network or computer resources by any person without permission of the owner or any person who is in charge of the computer, computer system, computer network or downloading of any such data or information from computer in a similar manner falls within the purview of Section 43 of the Information Technology Act, 2000. When such Act is done dishonestly and fraudulently it would attract the punishment under Section 66 of the Information Technology Act, such Act being held to be an offence. The ingredients of dishonesty and fraudulently are the same which are present if the person is charged with Section 420 of the Indian Penal Code. The offence of Section 379 in terms of technology is also covered under Section 43. Further, as far as Section 408 is concerned which relates to criminal breach of trust, by a clerk or servant who is entrusted in such capacity with the property or with any dominion over property, would also fall within the purview of Section 43 would intents to cover any act of accessing a computer by a person without permission of the owner or a person in charge of computer and/or stealing of any data, computer data base or any information from such computer or a computer system including information or data held or stored in any removable storage medium and if it is done with fraudulent and dishonest intention then it amounts to an offence. The ingredients of an offences under which are attracted by invoking and applying the Section 420, 408, 379 of the Indian Penal Code are covered by Section 66 of the Information Technology Act, 2000 and prosecuting the petitioners under the both Indian Penal Code and Information Technology Act would be a brazen violation of protection against double jeopardy.28. In such circumstances if the special enactment in form of the Information Technology Act contains a special mechanism to deal with the offences falling within the purview of Information Technology Act, then the invocation and application of the provisions of the Indian Penal Code being applicable to the same set of facts is totally uncalled for. Though the learned APP as well as Shri.Gupte has vehemently argued that the prosecution under the provisions of the Indian Penal Code can be continued and at the time of taking cognizance the Competent Court can determine the provisions of which enactments are attracted and it is too premature to exclude the investigation in the offences constituted under the Indian Penal Code, we are not ready to accept the said contention of the learned Senior Counsel, specifically in the light of the observations of the Honble Apex Court in the case of Sharat Babu Digumarti (Supra). We are of the specific opinion that it is not permissible to merely undergo the rigmarole of investigation although it is not open for the Investigating Officer to invoke and apply the provisions of the Indian Penal Code, in light of the specific provisions contained in the Information Technology Act, 2000 and leave it to the discretion of the Police Authorities to decide in which direction the investigation is to be proceeded. The Information Technology Act, 2000 being a special enactment, it requires an able investigation keeping in mind the purpose of the enactment and to nab the new venturing of crimes with the assistance of the Technology.
|
Central Provinces Transport Services Ltd Vs. Raghunath Gopal Patwardhan | No.14 of 1947, and it was held by Bhargava J., that an industrial dispute could come into existence even if the parties thereto were only the employer and a single employee and that the reference and the award were, inconsequence, valid. A similar decision was given by a. Full Bench of the Labour Appellate Tribunal inSwadeshi Cotton Mills Co. Ltd. v. Their Workmen,1953-1 Lab LJ 757 (F). (III) A dispute between an employer and a single employee cannot per se be an industrial dispute, but it may become one if it is taken up by the Union or a number of workmen. That was held by Bose J., inBilash Chandra Mitra v. Balmer Lawrie and Co Ltd.,A I R 1953 Cal 613 (G), by Ramaswami and Sarjoo Prasad J J. inNew India Assurance Co. v. Central Government Industrial Tribunal.A I R 1953 Pat 321 : 32 Pat 181 (H), and by Balakrishna Ayyar J. inLakshmi Talkies, Madras v. Munuswami,1955-2 Lab L J 477 (1), and by the Industrial Tribunal inGordon Woodroffe and Co. (Madras) Ltd. v. Appa Rao1955-2 Lab L J 541 (J) andLynns and Co. v. Hemanta Kumar Samanta,1956-2 Lab L J 89 (K). 9. The preponderance of judicial opinion is clearly in favour of the last of the three views stated above, and there is considerable reason behind it. Notwithstanding that the language of S. 2 (k) is wide enough to cover a dispute between an employer and a single employee, the scheme, of the Industrial Disputes Act does appeal to contemplate that the machinery provided therein should be set in motion, to settle only disputes which involve the rights of workmen as a class and that a dispute touching the individual rights of a workman was not intended to be the subject of an adjudication under the Act, when the same had not been taken up by the Union or a number of workmen. If that were the correct position, the respondent was not entitled to apply under S. 16 (2) of the Act as the workmen in the industry had not adopted his dispute p73 as their own and chosen to treat it as theircasus belliwith the company. But then, we are directly concerned in this appeal not with the Industrial Disputes Act No. 14 of 1947 but with the C.P. and Berar Industrial Disputes Settlement Act No.23 of 1947, and in the view which we take of the rights of the respondent under that statute, there is no need to express a final opinion on the question whether a dispute simpliciter between an employer and a workman would be an industrial dispute within S. 2 (k) of Act No. 14 of 1947. 10. Now, the C.P. and Berar Industrial Disputes Settlement Act No. 23 of 1947 with which we are concerned, is not inpari materiawith Act No. 14 of 1947. It no doubt covers the ground occupied by that Act, and contains provisions relating to arbitration, adjudication awards, strikes and lockouts. But it contains more. It enacts in Ch.1V provisions, which are intended to regulate the contract of employment between employer and workmen, a subject which is covered by a distinct piece of central legislation, Industrial Employment (Standing Orders) Act No. 20 of 1946. The object of that Act was, as appears from the preamble thereto, "to require employers in industrial establishments formally to define conditions of employment under them", where as the object of the Industrial Disputes Act No. 14 of 1947 is as set out in its preamble, "to make provision for the investigation and settlement of industrial disputes and for certain other purposes". Thus, even though the two enactments are pieces of what is termed labour legislation, their objects and their vision are different. While Act No. 14 of 1947, may be said to be primarily concerned with disputes of labour as a class, Act No.20 of 1946 is directed to getting the rights of an employee under a contract defined.Now, as the C.P. and Berar Industrial Disputes Settlement Act No.23 of 1947 covers the ground occupied by both Act No.20 of 1946 and Act No.14 of 1947, it would be proper to interpret the expression "industrial dispute" therein in a sense wider than what it bears in Act no. 14 of 1947 so as to cover not only disputes of workmen as a class but also their individual disputes.And this view receives considerable support from other provisions of the Act. Section 41 enacts that an application under that section can be made either by an employee or employees concerned or by a representative of the employees concerned. Section 2 (24) defines "representative of employees" as meaning a union or where there is no union, persons elected by the employees not exceeding five. Thus, there is a clear recognition of the rights of an individual employee as distinguished from a class of employees, to move for redress. It is argued by Mr. Umrigar that this recognition is only for the purpose of S. 41 and that no inference can be drawn therefrom that the employee has a similar right to apply under S. 16 (2). But the importance of S. 41 consists in this that it indicates that the Act has in contemplation the enforcement of individual rights of workmen also. Then we have S. 53, which runs as follows:"Save with the permission of the authority holding any proceeding under this act, no employee shall be allowed to appear in such proceeding except through the representative of employees: Provided that where only a single employee is concerned he may appear personally". This section again recognises the rights of employees to agitate their individual rights under the provisions of the Act.Section l6 is intended, in our opinion, to enable an employee to enforce his individual rights when there is an order of dismissal, discharge p73 or removal or suspension, and in the context, "industrial dispute" must be interpreted as including the claim of an employee who has been dismissed, for reinstatement and compensation. | 1[ds]It is not disputed that a question of reinstatement is an industrial matter as defined in S. 2 (13) of the ActWe do not see any force in either of these contentions. Section 2 (12) and S. 2 (13) of the Act are substantially inpari materiawith S. 2 (k) of Act No. 14 of 1947, and the ratio of the decision in 1949 F C R 321: A I R 1949 F C 111 (A), will be as much applicable to the one enactment as to the other. Nor does it make any difference that there were comprised in the reference other items which fell within the definition under S. 2 (k), because if the Government had no jurisdiction under the Act to refer the question of reinstatement of dismissed employee for adjudication, then the reference must, to that extent, be treated as a nullity, and it would be immaterial that, it wasintra viresas regards the other items of dispute6. We are also unable to accede to the contention of the appellant that the inclusive clause in S. 2 (10) of the Act is an indication that the legislature did not intend to include within that definition those who had ceased to be in service. In our opinion that clause was inserted ex abundanti cautela to repel a possible contention that employees discharged under Ss. 31 and 32 of the Act would not fall within S. 2 (10), and cannot be read as importing an intention generally to exclude dismissed employees from that definition. On the other hand S. 16 of the Act expressly provides for relief being granted to dismissed employees by way of reinstatement and compensation, and that provision must become useless and inoperative, if we are to adopt the construction which the appellant seeks to put on the definition of employee in S. 2 (10).We must accordingly hold agreeing with the decision in 1949 F C R 321: A I R 1949 F C 111(A), that the definition of "employee" in the act would include one who has been dismissed and the respondent cannot be denied relief only by reason of the fact that he was not in employment on the date of the application9. The preponderance of judicial opinion is clearly in favour of the last of the three views stated above, and there is considerable reason behind it. Notwithstanding that the language of S. 2 (k) is wide enough to cover a dispute between an employer and a single employee, the scheme, of the Industrial Disputes Act does appeal to contemplate that the machinery provided therein should be set in motion, to settle only disputes which involve the rights of workmen as a class and that a dispute touching the individual rights of a workman was not intended to be the subject of an adjudication under the Act, when the same had not been taken up by the Union or a number of workmen. If that were the correct position, the respondent was not entitled to apply under S. 16 (2) of the Act as the workmen in the industry had not adopted his dispute p73 as their own and chosen to treat it as theircasus belliwith the company. But then, we are directly concerned in this appeal not with the Industrial Disputes Act No. 14 of 1947 but with the C.P. and Berar Industrial Disputes Settlement Act No.23 of 1947, and in the view which we take of the rights of the respondent under that statute, there is no need to express a final opinion on the question whether a dispute simpliciter between an employer and a workman would be an industrial dispute within S. 2 (k) of Act No. 14 of 1947Thus, there is a clear recognition of the rights of an individual employee as distinguished from a class of employees, to move for redressSection l6 is intended, in our opinion, to enable an employee to enforce his individual rights when there is an order of dismissal, discharge p73 or removal or suspension, and in the context, "industrial dispute" must be interpreted as including the claim of an employee who has been dismissed, for reinstatement and compensation. | 1 | 3,719 | 778 | ### 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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No.14 of 1947, and it was held by Bhargava J., that an industrial dispute could come into existence even if the parties thereto were only the employer and a single employee and that the reference and the award were, inconsequence, valid. A similar decision was given by a. Full Bench of the Labour Appellate Tribunal inSwadeshi Cotton Mills Co. Ltd. v. Their Workmen,1953-1 Lab LJ 757 (F). (III) A dispute between an employer and a single employee cannot per se be an industrial dispute, but it may become one if it is taken up by the Union or a number of workmen. That was held by Bose J., inBilash Chandra Mitra v. Balmer Lawrie and Co Ltd.,A I R 1953 Cal 613 (G), by Ramaswami and Sarjoo Prasad J J. inNew India Assurance Co. v. Central Government Industrial Tribunal.A I R 1953 Pat 321 : 32 Pat 181 (H), and by Balakrishna Ayyar J. inLakshmi Talkies, Madras v. Munuswami,1955-2 Lab L J 477 (1), and by the Industrial Tribunal inGordon Woodroffe and Co. (Madras) Ltd. v. Appa Rao1955-2 Lab L J 541 (J) andLynns and Co. v. Hemanta Kumar Samanta,1956-2 Lab L J 89 (K). 9. The preponderance of judicial opinion is clearly in favour of the last of the three views stated above, and there is considerable reason behind it. Notwithstanding that the language of S. 2 (k) is wide enough to cover a dispute between an employer and a single employee, the scheme, of the Industrial Disputes Act does appeal to contemplate that the machinery provided therein should be set in motion, to settle only disputes which involve the rights of workmen as a class and that a dispute touching the individual rights of a workman was not intended to be the subject of an adjudication under the Act, when the same had not been taken up by the Union or a number of workmen. If that were the correct position, the respondent was not entitled to apply under S. 16 (2) of the Act as the workmen in the industry had not adopted his dispute p73 as their own and chosen to treat it as theircasus belliwith the company. But then, we are directly concerned in this appeal not with the Industrial Disputes Act No. 14 of 1947 but with the C.P. and Berar Industrial Disputes Settlement Act No.23 of 1947, and in the view which we take of the rights of the respondent under that statute, there is no need to express a final opinion on the question whether a dispute simpliciter between an employer and a workman would be an industrial dispute within S. 2 (k) of Act No. 14 of 1947. 10. Now, the C.P. and Berar Industrial Disputes Settlement Act No. 23 of 1947 with which we are concerned, is not inpari materiawith Act No. 14 of 1947. It no doubt covers the ground occupied by that Act, and contains provisions relating to arbitration, adjudication awards, strikes and lockouts. But it contains more. It enacts in Ch.1V provisions, which are intended to regulate the contract of employment between employer and workmen, a subject which is covered by a distinct piece of central legislation, Industrial Employment (Standing Orders) Act No. 20 of 1946. The object of that Act was, as appears from the preamble thereto, "to require employers in industrial establishments formally to define conditions of employment under them", where as the object of the Industrial Disputes Act No. 14 of 1947 is as set out in its preamble, "to make provision for the investigation and settlement of industrial disputes and for certain other purposes". Thus, even though the two enactments are pieces of what is termed labour legislation, their objects and their vision are different. While Act No. 14 of 1947, may be said to be primarily concerned with disputes of labour as a class, Act No.20 of 1946 is directed to getting the rights of an employee under a contract defined.Now, as the C.P. and Berar Industrial Disputes Settlement Act No.23 of 1947 covers the ground occupied by both Act No.20 of 1946 and Act No.14 of 1947, it would be proper to interpret the expression "industrial dispute" therein in a sense wider than what it bears in Act no. 14 of 1947 so as to cover not only disputes of workmen as a class but also their individual disputes.And this view receives considerable support from other provisions of the Act. Section 41 enacts that an application under that section can be made either by an employee or employees concerned or by a representative of the employees concerned. Section 2 (24) defines "representative of employees" as meaning a union or where there is no union, persons elected by the employees not exceeding five. Thus, there is a clear recognition of the rights of an individual employee as distinguished from a class of employees, to move for redress. It is argued by Mr. Umrigar that this recognition is only for the purpose of S. 41 and that no inference can be drawn therefrom that the employee has a similar right to apply under S. 16 (2). But the importance of S. 41 consists in this that it indicates that the Act has in contemplation the enforcement of individual rights of workmen also. Then we have S. 53, which runs as follows:"Save with the permission of the authority holding any proceeding under this act, no employee shall be allowed to appear in such proceeding except through the representative of employees: Provided that where only a single employee is concerned he may appear personally". This section again recognises the rights of employees to agitate their individual rights under the provisions of the Act.Section l6 is intended, in our opinion, to enable an employee to enforce his individual rights when there is an order of dismissal, discharge p73 or removal or suspension, and in the context, "industrial dispute" must be interpreted as including the claim of an employee who has been dismissed, for reinstatement and compensation.
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It is not disputed that a question of reinstatement is an industrial matter as defined in S. 2 (13) of the ActWe do not see any force in either of these contentions. Section 2 (12) and S. 2 (13) of the Act are substantially inpari materiawith S. 2 (k) of Act No. 14 of 1947, and the ratio of the decision in 1949 F C R 321: A I R 1949 F C 111 (A), will be as much applicable to the one enactment as to the other. Nor does it make any difference that there were comprised in the reference other items which fell within the definition under S. 2 (k), because if the Government had no jurisdiction under the Act to refer the question of reinstatement of dismissed employee for adjudication, then the reference must, to that extent, be treated as a nullity, and it would be immaterial that, it wasintra viresas regards the other items of dispute6. We are also unable to accede to the contention of the appellant that the inclusive clause in S. 2 (10) of the Act is an indication that the legislature did not intend to include within that definition those who had ceased to be in service. In our opinion that clause was inserted ex abundanti cautela to repel a possible contention that employees discharged under Ss. 31 and 32 of the Act would not fall within S. 2 (10), and cannot be read as importing an intention generally to exclude dismissed employees from that definition. On the other hand S. 16 of the Act expressly provides for relief being granted to dismissed employees by way of reinstatement and compensation, and that provision must become useless and inoperative, if we are to adopt the construction which the appellant seeks to put on the definition of employee in S. 2 (10).We must accordingly hold agreeing with the decision in 1949 F C R 321: A I R 1949 F C 111(A), that the definition of "employee" in the act would include one who has been dismissed and the respondent cannot be denied relief only by reason of the fact that he was not in employment on the date of the application9. The preponderance of judicial opinion is clearly in favour of the last of the three views stated above, and there is considerable reason behind it. Notwithstanding that the language of S. 2 (k) is wide enough to cover a dispute between an employer and a single employee, the scheme, of the Industrial Disputes Act does appeal to contemplate that the machinery provided therein should be set in motion, to settle only disputes which involve the rights of workmen as a class and that a dispute touching the individual rights of a workman was not intended to be the subject of an adjudication under the Act, when the same had not been taken up by the Union or a number of workmen. If that were the correct position, the respondent was not entitled to apply under S. 16 (2) of the Act as the workmen in the industry had not adopted his dispute p73 as their own and chosen to treat it as theircasus belliwith the company. But then, we are directly concerned in this appeal not with the Industrial Disputes Act No. 14 of 1947 but with the C.P. and Berar Industrial Disputes Settlement Act No.23 of 1947, and in the view which we take of the rights of the respondent under that statute, there is no need to express a final opinion on the question whether a dispute simpliciter between an employer and a workman would be an industrial dispute within S. 2 (k) of Act No. 14 of 1947Thus, there is a clear recognition of the rights of an individual employee as distinguished from a class of employees, to move for redressSection l6 is intended, in our opinion, to enable an employee to enforce his individual rights when there is an order of dismissal, discharge p73 or removal or suspension, and in the context, "industrial dispute" must be interpreted as including the claim of an employee who has been dismissed, for reinstatement and compensation.
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Rikhabdas Vs. Ballabhdas And Others | say, finds the statement of some erroneous legal proposition which is the basis of the award, it can remit the award to the arbitrator for reconsideration and Want of registration is a defect de hors the award or the decision of the arbitrator, and so in our judgment is not covered by cl. (a) of S. 16 (1), Arbitration Act of 1940. What was said there about a want of registration is clearly equally applicable to a want of stamp. 7. Mr. Pathak appearing for the respondent contended that under S. 14 (1) of he Arbitration Act it was clearly the duty of the arbitrator to inform the parties of the amount of stamp duty payable on the award. Section 14 (1) is in these terms: Section 14 (1) When the arbitrators or umpire have made their award, they shall sign it and shall give notice in writing to the parties of the making and signing thereof and of the amount of fees and charges payable in respect of the arbitration and award .We are unable to see how this section can provide the basis for the order made in this case. It only says that the arbitrators shall inform the parties of the fees and charges payable. Even assuming that the word charges includes duty payable for the stamp to be affixed to the award, at best, this section would support an order directing the arbitrators to supply this information. It would not justify an order requiring the arbitrators to inscribe the award afresh on a stamped paper and resubmit it to court. As at present advised, we have grave doubts if the fees and charges mentioned in S. 14 (1) include the stamp duty payable on the award. Section 17 of the Stamp Act requires that stamping should be at the time of execution. Under S. 14 (1) of the Arbitration Act, it is only after the signing of the award that is, its execution, that the arbitrators are required to supply the information about the fees and charges. It is, of course, no part of the duty of the arbitrators under the Act or otherwise to find the costs of stamp themselves. Therefore it is difficult to appreciate how the word charges mentioned in this section includes stamp. But on this question it is not necessary for us to express any final opinion in this case. 8. Mr. Pathak contended that even if the case did not come within S. 16(1) (c) of the Arbitration Act, the order in the present case can be supported under S. 151 of the Code of Civil Procedure which preserves the inherent power of a court to make such orders as may be necessary for the ends of justice. It is true that S. 41 of the Arbitration Act makes the provisions of the Code of Civil Procedure applicable to proceedings before a court under the Arbitration Act. But it is well known that after making his award the arbitrator is functus officio. To cite one authority for this proposition we may quote the observations of Mellish L. J. in Mordue v. Palmer, (1870) 6 Ch A 22 at p. 31: I think the result of the cases at law is that when an arbitrator has signed a document as and for his award, he is functus officio, and be cannot of his own authority remedy any mistake. In the present case, ex hypothesi, the award has already been made and the arbitrator has therefore become functus officio. It is that award which requires stamp. Section 151 of the Code cannot give the court power to direct the arbitrator to make a fresh award; that would be against well-established principles of the law of arbitration. It would again be useless to have another copy of the award prepared and stamped for the copy would not be the award and no action in a court can be taken on it. The order cannot therefore be supported by S. 151 of the Code. It is of some interest to read here the following passage from Russel on Arbitration (14th Ed.) p. 325 : The usual practice in preparing an award is to have two copies made of it. One the arbitrator signs, which then becomes the original award, and this is delivered to the party who takes up the award. The other copy is available for the other parties if they apply for it. The original award, before it is available for any purpose whatsoever, must be duly stamped, but there is no obligation upon the arbitrator to stamp it, and he does not usually do so. We should observe here that the last paragraph in the aforesaid quotation does not appear in the 16th edition of Russels work. Perhaps this is because in England an award is no more required to be stamped by virtue of S. 35 Sched. 8 of the Finance Act, 1949 which was passed after the 14th edition was published. 9. Lastly, Mr. Pathak tried to support the order under Ss. 13 (d) and 15 (b) an (c) of the Arbitration Act. A bare perusal the provisions mentioned would show that the order made in this case cannot be based on any of them. Section 13 (d) deals with correction of clerical mistakes or accidental slips in the award, neither of which we think an omission to stamp, is. Furthermore, S.13 is only an enabling section giving certain powers to the arbitrator. The arbitrator cannot be compelled to exercise these powers. Section 15 deals with a courts power to modify or correct an award. In the present case, the Court did not purport to exercise that power. 10. We, therefore, think that the Division Bench was in error in thinking that an order could be made remitting the award to the arbitrator with a direction to re-write it on a stamped paper and re-submit it to court. That is the only point that we decide in this case. | 1[ds]We think that the Division Bench of the High Court was clearly in error. Under S. 16 of the Arbitration Act an award can be remitted to the arbitrators only for reconsideration. When it is remitted for rewriting it on a stamped paper, it is not remitted for reconsideration. Reconsideration by the arbitrators necessarily imparts fresh consideration of matters already considered by them. Now they can only consider and give a decision upon matters which are referred to them under the arbitration agreement. It follows that the reconsideration can only be as to the merits of the award. They reconsider nothing when they re-write the award on a stamped paperIt is, of course, no part of the duty of the arbitrators under the Act or otherwise to find the costs of stamp themselves. Therefore it is difficult to appreciate how the word charges mentioned in this section includes stamp. But on this question it is not necessary for us to express any final opinion in this caseIt is true that S. 41 of the Arbitration Act makes the provisions of the Code of Civil Procedure applicable to proceedings before a court under the Arbitration Act. But it is well known that after making his award the arbitrator is functus officioIn the present case, ex hypothesi, the award has already been made and the arbitrator has therefore become functus officio. It is that award which requires stamp. Section 151 of the Code cannot give the court power to direct the arbitrator to make a fresh award; that would be against well-established principles of the law of arbitration. It would again be useless to have another copy of the award prepared and stamped for the copy would not be the award and no action in a court can be taken on it. The order cannot therefore be supported by S. 151 of the CodeWe should observe here that the last paragraph in the aforesaid quotation does not appear in the 16th edition of Russels work. Perhaps this is because in England an award is no more required to be stamped by virtue of S. 35 Sched. 8 of the Finance Act, 1949 which was passed after the 14th edition was publishedA bare perusal the provisions mentioned would show that the order made in this case cannot be based on any of them. Section 13 (d) deals with correction of clerical mistakes or accidental slips in the award, neither of which we think an omission to stamp, is. Furthermore, S.13 is only an enabling section giving certain powers to the arbitrator. The arbitrator cannot be compelled to exercise these powers. Section 15 deals with a courts power to modify or correct an award. In the present case, the Court did not purport to exercise that power10. We, therefore, think that the Division Bench was in error in thinking that an order could be made remitting the award to the arbitrator with a direction to re-write it on a stamped paper and re-submit it to court. That is the only point that we decide in this case. | 1 | 2,090 | 559 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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say, finds the statement of some erroneous legal proposition which is the basis of the award, it can remit the award to the arbitrator for reconsideration and Want of registration is a defect de hors the award or the decision of the arbitrator, and so in our judgment is not covered by cl. (a) of S. 16 (1), Arbitration Act of 1940. What was said there about a want of registration is clearly equally applicable to a want of stamp. 7. Mr. Pathak appearing for the respondent contended that under S. 14 (1) of he Arbitration Act it was clearly the duty of the arbitrator to inform the parties of the amount of stamp duty payable on the award. Section 14 (1) is in these terms: Section 14 (1) When the arbitrators or umpire have made their award, they shall sign it and shall give notice in writing to the parties of the making and signing thereof and of the amount of fees and charges payable in respect of the arbitration and award .We are unable to see how this section can provide the basis for the order made in this case. It only says that the arbitrators shall inform the parties of the fees and charges payable. Even assuming that the word charges includes duty payable for the stamp to be affixed to the award, at best, this section would support an order directing the arbitrators to supply this information. It would not justify an order requiring the arbitrators to inscribe the award afresh on a stamped paper and resubmit it to court. As at present advised, we have grave doubts if the fees and charges mentioned in S. 14 (1) include the stamp duty payable on the award. Section 17 of the Stamp Act requires that stamping should be at the time of execution. Under S. 14 (1) of the Arbitration Act, it is only after the signing of the award that is, its execution, that the arbitrators are required to supply the information about the fees and charges. It is, of course, no part of the duty of the arbitrators under the Act or otherwise to find the costs of stamp themselves. Therefore it is difficult to appreciate how the word charges mentioned in this section includes stamp. But on this question it is not necessary for us to express any final opinion in this case. 8. Mr. Pathak contended that even if the case did not come within S. 16(1) (c) of the Arbitration Act, the order in the present case can be supported under S. 151 of the Code of Civil Procedure which preserves the inherent power of a court to make such orders as may be necessary for the ends of justice. It is true that S. 41 of the Arbitration Act makes the provisions of the Code of Civil Procedure applicable to proceedings before a court under the Arbitration Act. But it is well known that after making his award the arbitrator is functus officio. To cite one authority for this proposition we may quote the observations of Mellish L. J. in Mordue v. Palmer, (1870) 6 Ch A 22 at p. 31: I think the result of the cases at law is that when an arbitrator has signed a document as and for his award, he is functus officio, and be cannot of his own authority remedy any mistake. In the present case, ex hypothesi, the award has already been made and the arbitrator has therefore become functus officio. It is that award which requires stamp. Section 151 of the Code cannot give the court power to direct the arbitrator to make a fresh award; that would be against well-established principles of the law of arbitration. It would again be useless to have another copy of the award prepared and stamped for the copy would not be the award and no action in a court can be taken on it. The order cannot therefore be supported by S. 151 of the Code. It is of some interest to read here the following passage from Russel on Arbitration (14th Ed.) p. 325 : The usual practice in preparing an award is to have two copies made of it. One the arbitrator signs, which then becomes the original award, and this is delivered to the party who takes up the award. The other copy is available for the other parties if they apply for it. The original award, before it is available for any purpose whatsoever, must be duly stamped, but there is no obligation upon the arbitrator to stamp it, and he does not usually do so. We should observe here that the last paragraph in the aforesaid quotation does not appear in the 16th edition of Russels work. Perhaps this is because in England an award is no more required to be stamped by virtue of S. 35 Sched. 8 of the Finance Act, 1949 which was passed after the 14th edition was published. 9. Lastly, Mr. Pathak tried to support the order under Ss. 13 (d) and 15 (b) an (c) of the Arbitration Act. A bare perusal the provisions mentioned would show that the order made in this case cannot be based on any of them. Section 13 (d) deals with correction of clerical mistakes or accidental slips in the award, neither of which we think an omission to stamp, is. Furthermore, S.13 is only an enabling section giving certain powers to the arbitrator. The arbitrator cannot be compelled to exercise these powers. Section 15 deals with a courts power to modify or correct an award. In the present case, the Court did not purport to exercise that power. 10. We, therefore, think that the Division Bench was in error in thinking that an order could be made remitting the award to the arbitrator with a direction to re-write it on a stamped paper and re-submit it to court. That is the only point that we decide in this case.
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### Explanation:
We think that the Division Bench of the High Court was clearly in error. Under S. 16 of the Arbitration Act an award can be remitted to the arbitrators only for reconsideration. When it is remitted for rewriting it on a stamped paper, it is not remitted for reconsideration. Reconsideration by the arbitrators necessarily imparts fresh consideration of matters already considered by them. Now they can only consider and give a decision upon matters which are referred to them under the arbitration agreement. It follows that the reconsideration can only be as to the merits of the award. They reconsider nothing when they re-write the award on a stamped paperIt is, of course, no part of the duty of the arbitrators under the Act or otherwise to find the costs of stamp themselves. Therefore it is difficult to appreciate how the word charges mentioned in this section includes stamp. But on this question it is not necessary for us to express any final opinion in this caseIt is true that S. 41 of the Arbitration Act makes the provisions of the Code of Civil Procedure applicable to proceedings before a court under the Arbitration Act. But it is well known that after making his award the arbitrator is functus officioIn the present case, ex hypothesi, the award has already been made and the arbitrator has therefore become functus officio. It is that award which requires stamp. Section 151 of the Code cannot give the court power to direct the arbitrator to make a fresh award; that would be against well-established principles of the law of arbitration. It would again be useless to have another copy of the award prepared and stamped for the copy would not be the award and no action in a court can be taken on it. The order cannot therefore be supported by S. 151 of the CodeWe should observe here that the last paragraph in the aforesaid quotation does not appear in the 16th edition of Russels work. Perhaps this is because in England an award is no more required to be stamped by virtue of S. 35 Sched. 8 of the Finance Act, 1949 which was passed after the 14th edition was publishedA bare perusal the provisions mentioned would show that the order made in this case cannot be based on any of them. Section 13 (d) deals with correction of clerical mistakes or accidental slips in the award, neither of which we think an omission to stamp, is. Furthermore, S.13 is only an enabling section giving certain powers to the arbitrator. The arbitrator cannot be compelled to exercise these powers. Section 15 deals with a courts power to modify or correct an award. In the present case, the Court did not purport to exercise that power10. We, therefore, think that the Division Bench was in error in thinking that an order could be made remitting the award to the arbitrator with a direction to re-write it on a stamped paper and re-submit it to court. That is the only point that we decide in this case.
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M/S. Brakewel Automotive Components (India) Pvt. Ltd Vs. P.R. Selvam Alagappan | the execution of the decree is neither on behalf of M/s. Kargaappa Auto Products/M/s. Karpaga Auto Products nor its proprietress, his wife contending that the decree is neither binding on the firm nor on her. For all practical purposes, the said firm is still being represented by the respondent in the subsisting proceedings. The sequence of events disclose that the suit had been instituted in the year 2010 and was decreed on 16.10.2011. The persistent default on the part of the respondent has been adverted to hereinabove. Though a defective appeal had been filed on his behalf in the year 2012, it was withdrawn and was not re-filed by removing the defects. The Execution Petition though lodged in the year 2014 has not seen the fruit of the decree as on date. The Review Petition filed by the respondent has also been dismissed. Significantly, in all the proceedings initiated by the respondent to stall the execution of the decree, the same pleas have been reiterated.19. It is no longer res integra that an Executing Court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus inexecutable. An erroneous decree cannot be equaled with one which is a nullity. There are no intervening developments as well as to render the decree inexecutable.20. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof. 21. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric . This Court, amongst others in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others 1971 (1) SCR 66 in essence enunciated that only a decree which is a nullity can be the subject matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt: "A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction." 22. Though this view has echoed time out of number in similar pronouncements of this Court, in Dhurandhar Prasad Singh v. Jai Prakash University and others, AIR 2001 SC 2552 , while dwelling on the scope of Section 47 of the Code, it was ruled that the powers of the court thereunder are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executabilty of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree inexecutable after its passing. None of the above eventualities as recognised in law for rendering a decree inexecutable, exists in the case in hand. For obvious reasons, we do not wish to burden this adjudication by multiplying the decisions favouring the same view. 23. Having regard to the contextual facts and the objections raised by the respondent, we are of the unhesitant opinion that no case has been made out to entertain the remonstrances against the decree or the application under Section 47 CPC. Both the Executing Court and the High Court, in our comprehension, have not only erred in construing the scope and ambit of scrutiny under Section 47 CPC, but have also overlooked the fact that the decree does not suffer either from any jurisdictional error or is otherwise invalid in law. The objections to the execution petition as well as to the application under Section 47 CPC filed by the respondent do not either disclose any substantial defence to the decree or testify the same to be suffering from any jurisdictional infirmity or invalidity. These are therefore rejected. | 1[ds]18. The materials on record and the arguments based thereon have received our due consideration. To recapitulate, the plaint discloses that the respondent had represented before the appellant to be authorised to act on behalf of both the firms and in that capacity had participated in the transactions that followed. In that perspective, even assuming that the name of one of the firms was wrongly mentioned and that in fact, it is the wife of the respondent, who is the proprietress thereof, with whom there is no conflict of interest, these in our comprehension per se, would not render the decree void or inexecutable. Such errors, even if exist, would not infest the decree with any jurisdictional infirmity or reduce it to a nullity. Noticeably, there is no dispute with regard to the identity of the firms involved and their representation by the respondent in the suit transactions. The allegation of fraud and collusion between the learned counsel for the respondent and the appellant is visibly self-serving, omnibus, speculative and unauthentic and cannot therefore, after so many years, ipso facto render the decree invalid on account thereof. Visibly, the respondent had been the center figure in all the transactions between the parties on behalf of the firms, as stand proved in the suit and the resistance to the execution of the decree is neither on behalf of M/s. Kargaappa Auto Products/M/s. Karpaga Auto Products nor its proprietress, his wife contending that the decree is neither binding on the firm nor on her. For all practical purposes, the said firm is still being represented by the respondent in the subsisting proceedings. The sequence of events disclose that the suit had been instituted in the year 2010 and was decreed on 16.10.2011. The persistent default on the part of the respondent has been adverted to hereinabove. Though a defective appeal had been filed on his behalf in the year 2012, it was withdrawn and was not re-filed by removing the defects. The Execution Petition though lodged in the year 2014 has not seen the fruit of the decree as on date. The Review Petition filed by the respondent has also been dismissed. Significantly, in all the proceedings initiated by the respondent to stall the execution of the decree, the same pleas have been reiterated.19. It is no longer res integra that an Executing Court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus inexecutable. An erroneous decree cannot be equaled with one which is a nullity. There are no intervening developments as well as to render the decree inexecutable.20. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof.Having regard to the contextual facts and the objections raised by the respondent, we are of the unhesitant opinion that no case has been made out to entertain the remonstrances against the decree or the application under Section 47 CPC. Both the Executing Court and the High Court, in our comprehension, have not only erred in construing the scope and ambit of scrutiny under Section 47 CPC, but have also overlooked the fact that the decree does not suffer either from any jurisdictional error or is otherwise invalid in law. The objections to the execution petition as well as to the application under Section 47 CPC filed by the respondent do not either disclose any substantial defence to the decree or testify the same to be suffering from any jurisdictional infirmity or invalidity. These are therefore rejected. | 1 | 3,452 | 748 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
the execution of the decree is neither on behalf of M/s. Kargaappa Auto Products/M/s. Karpaga Auto Products nor its proprietress, his wife contending that the decree is neither binding on the firm nor on her. For all practical purposes, the said firm is still being represented by the respondent in the subsisting proceedings. The sequence of events disclose that the suit had been instituted in the year 2010 and was decreed on 16.10.2011. The persistent default on the part of the respondent has been adverted to hereinabove. Though a defective appeal had been filed on his behalf in the year 2012, it was withdrawn and was not re-filed by removing the defects. The Execution Petition though lodged in the year 2014 has not seen the fruit of the decree as on date. The Review Petition filed by the respondent has also been dismissed. Significantly, in all the proceedings initiated by the respondent to stall the execution of the decree, the same pleas have been reiterated.19. It is no longer res integra that an Executing Court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus inexecutable. An erroneous decree cannot be equaled with one which is a nullity. There are no intervening developments as well as to render the decree inexecutable.20. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof. 21. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric . This Court, amongst others in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others 1971 (1) SCR 66 in essence enunciated that only a decree which is a nullity can be the subject matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt: "A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction." 22. Though this view has echoed time out of number in similar pronouncements of this Court, in Dhurandhar Prasad Singh v. Jai Prakash University and others, AIR 2001 SC 2552 , while dwelling on the scope of Section 47 of the Code, it was ruled that the powers of the court thereunder are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executabilty of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree inexecutable after its passing. None of the above eventualities as recognised in law for rendering a decree inexecutable, exists in the case in hand. For obvious reasons, we do not wish to burden this adjudication by multiplying the decisions favouring the same view. 23. Having regard to the contextual facts and the objections raised by the respondent, we are of the unhesitant opinion that no case has been made out to entertain the remonstrances against the decree or the application under Section 47 CPC. Both the Executing Court and the High Court, in our comprehension, have not only erred in construing the scope and ambit of scrutiny under Section 47 CPC, but have also overlooked the fact that the decree does not suffer either from any jurisdictional error or is otherwise invalid in law. The objections to the execution petition as well as to the application under Section 47 CPC filed by the respondent do not either disclose any substantial defence to the decree or testify the same to be suffering from any jurisdictional infirmity or invalidity. These are therefore rejected.
### Response:
1
### Explanation:
18. The materials on record and the arguments based thereon have received our due consideration. To recapitulate, the plaint discloses that the respondent had represented before the appellant to be authorised to act on behalf of both the firms and in that capacity had participated in the transactions that followed. In that perspective, even assuming that the name of one of the firms was wrongly mentioned and that in fact, it is the wife of the respondent, who is the proprietress thereof, with whom there is no conflict of interest, these in our comprehension per se, would not render the decree void or inexecutable. Such errors, even if exist, would not infest the decree with any jurisdictional infirmity or reduce it to a nullity. Noticeably, there is no dispute with regard to the identity of the firms involved and their representation by the respondent in the suit transactions. The allegation of fraud and collusion between the learned counsel for the respondent and the appellant is visibly self-serving, omnibus, speculative and unauthentic and cannot therefore, after so many years, ipso facto render the decree invalid on account thereof. Visibly, the respondent had been the center figure in all the transactions between the parties on behalf of the firms, as stand proved in the suit and the resistance to the execution of the decree is neither on behalf of M/s. Kargaappa Auto Products/M/s. Karpaga Auto Products nor its proprietress, his wife contending that the decree is neither binding on the firm nor on her. For all practical purposes, the said firm is still being represented by the respondent in the subsisting proceedings. The sequence of events disclose that the suit had been instituted in the year 2010 and was decreed on 16.10.2011. The persistent default on the part of the respondent has been adverted to hereinabove. Though a defective appeal had been filed on his behalf in the year 2012, it was withdrawn and was not re-filed by removing the defects. The Execution Petition though lodged in the year 2014 has not seen the fruit of the decree as on date. The Review Petition filed by the respondent has also been dismissed. Significantly, in all the proceedings initiated by the respondent to stall the execution of the decree, the same pleas have been reiterated.19. It is no longer res integra that an Executing Court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus inexecutable. An erroneous decree cannot be equaled with one which is a nullity. There are no intervening developments as well as to render the decree inexecutable.20. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof.Having regard to the contextual facts and the objections raised by the respondent, we are of the unhesitant opinion that no case has been made out to entertain the remonstrances against the decree or the application under Section 47 CPC. Both the Executing Court and the High Court, in our comprehension, have not only erred in construing the scope and ambit of scrutiny under Section 47 CPC, but have also overlooked the fact that the decree does not suffer either from any jurisdictional error or is otherwise invalid in law. The objections to the execution petition as well as to the application under Section 47 CPC filed by the respondent do not either disclose any substantial defence to the decree or testify the same to be suffering from any jurisdictional infirmity or invalidity. These are therefore rejected.
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THE SECRETARY, MOC, NEW DELHI-1 Vs. M/S VINOD AND COMPANY | 2(o) has defined the expression service to mean a service of any description. The issue essentially is whether in formulating the Exim policy and in providing a regulatory regime, the government performs a service of any description. 20. Since in the present case the relevant Exim policy is for the period from April 1988 to March 1991, it would be instructive to extract the purpose and object of the policy as contained in the foreword to the document; The Import and Export Policy plays a crucial role in the economy as a whole and in particular the industrial and export sectors. The main objectives of the new Policy are - (i) to stimulate industrial growth by providing easy access to essential imported capital goods, raw materials and components to industry and to sustain the movement towards modernisation, technological upgradation and make the industry progressively competitive internationally. (ii) to promote efficient import substitution and self- reliance; (iii) to give a fresh impetus to export promotion by improving the quality of incentives and their administration; and (iv) to simplify and ratioinalise Police and Procedures. These objectives are sought to be achieved keeping in view the constraints of both domestic and external resources. 21. Chapter XIX provided for the Duty Exemption Scheme under which paragraph 239 provided for a special REP facility in the following terms:- Special REP Facility 239. (1) The licence holder under this scheme would be eligible to an REP licence after he has fulfilled the export obligation and the DEEC has been discharged. The value of the REP licence would be equal to 10 per cent of the value addition achieved (f.o.b. value of exports minus c.i.f. value of imports). The value of the REP licence so calculated would be further limited to the REP entitlement on the total f.o.b. value of exports, as per Appendix 17 or as per para 166(2) (For Residual Products) of this policy, as the case may be. The REP licence so issued will be valid for the import of the items as allowed against the relevant export product in Appendix 17 or para 166(2) of this Policy, at the time of issue of the licence. 22. The objects of the policy are essentially to stimulate industrial growth by providing easy access to imported capital goods, raw materials and components, to substitute imports and promote self-reliance and to provide an impetus to exports by improving the quality of incentives. The Exim policy is an incident of the fiscal policy of the State and of its overall control over foreign trade. As an incident of its policy, the State may provide a regime of incentives. The provision of those incentives does not render the State a service provider or the person who avails of the incentives as a potential user of any service. The State, in exercise of its authority to utilise and collect revenue, puts in place diverse regulatory regimes under the law. The regime may provide for modalities for compliance, penalties for breach and incentives to achieve the purpose of the policy. The grant of these incentives does not constitute the State as a service provider. 23. Before a three judge Bench of this Court in Vikas Sales Corporation (supra), the issue for consideration was whether the transfer of an REP licence or Exim scrip to another constitutes a sale of goods within the meaning of state sales tax legislation. Explaining the objectives of the import policy, the Court held: 4. …..The objective behind the licences was to provide to the registered exporters the facility of importing the essential inputs required for the manufacture of the products exported. The essential idea was to encourage exports and for that purpose import licences called REP Licences were issued equal to the prescribed percentage of the value of exports. These licences were made freely transferable. It was provided that the transfer such licences did not require any endorsement or permission from the licencing authority. It was clarified that such would be: governed by the ordinary law. It only required a letter from the transferor recording and evidencing the transfer. On that basis, the transferee; became the due and lawful holder of the licence and could either import the goods permitted thereunder or sell it to another in turn. 24. In Bihar School Examination Board (supra) which was decided by a Bench of two judges, the issue was whether the Board of Examinations governed by state law is amenable to the jurisdiction of the District Forum under the Consumer Protection Act, 1986. Answering the question in the negative, this Court held: 12. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its services to any candidate. Nor does a student who participates in the examination conducted by the Board, hire or avail of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis-a-vis other examinees. The process is not, therefore, availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination. 25. In the circumstances, it was held that the Board is not a service provider and a student who takes an examination is not a consumer. 26. We are of the view that by analogy, the same principle must govern the present case for the reasons that we have indicated. | 1[ds]22. The objects of the policy are essentially to stimulate industrial growth by providing easy access to imported capital goods, raw materials and components, to substitute imports and promote self-reliance and to provide an impetus to exports by improving the quality of incentives. The Exim policy is an incident of the fiscal policy of the State and of its overall control over foreign trade. As an incident of its policy, the State may provide a regime of incentives. The provision of those incentives does not render the State a service provider or the person who avails of the incentives as a potential user of any service. The State, in exercise of its authority to utilise and collect revenue, puts in place diverse regulatory regimes under the law. The regime may provide for modalities for compliance, penalties for breach and incentives to achieve the purpose of the policy. The grant of these incentives does not constitute the State as a service provider24. In Bihar School Examination Board (supra) which was decided by a Bench of two judges, the issue was whether the Board of Examinations governed by state law is amenable to the jurisdiction of the District Forum under the Consumer Protection Act, 1986. Answering the question in the negative, this Court held:12. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its services to any candidate. Nor does a student who participates in the examination conducted by the Board, hire or avail of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis-a-vis other examinees. The process is not, therefore, availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination25. In the circumstances, it was held that the Board is not a service provider and a student who takes an examination is not a consumer26. We are of the view that by analogy, the same principle must govern the present case for the reasons that we have indicated. | 1 | 2,611 | 489 | ### 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:
2(o) has defined the expression service to mean a service of any description. The issue essentially is whether in formulating the Exim policy and in providing a regulatory regime, the government performs a service of any description. 20. Since in the present case the relevant Exim policy is for the period from April 1988 to March 1991, it would be instructive to extract the purpose and object of the policy as contained in the foreword to the document; The Import and Export Policy plays a crucial role in the economy as a whole and in particular the industrial and export sectors. The main objectives of the new Policy are - (i) to stimulate industrial growth by providing easy access to essential imported capital goods, raw materials and components to industry and to sustain the movement towards modernisation, technological upgradation and make the industry progressively competitive internationally. (ii) to promote efficient import substitution and self- reliance; (iii) to give a fresh impetus to export promotion by improving the quality of incentives and their administration; and (iv) to simplify and ratioinalise Police and Procedures. These objectives are sought to be achieved keeping in view the constraints of both domestic and external resources. 21. Chapter XIX provided for the Duty Exemption Scheme under which paragraph 239 provided for a special REP facility in the following terms:- Special REP Facility 239. (1) The licence holder under this scheme would be eligible to an REP licence after he has fulfilled the export obligation and the DEEC has been discharged. The value of the REP licence would be equal to 10 per cent of the value addition achieved (f.o.b. value of exports minus c.i.f. value of imports). The value of the REP licence so calculated would be further limited to the REP entitlement on the total f.o.b. value of exports, as per Appendix 17 or as per para 166(2) (For Residual Products) of this policy, as the case may be. The REP licence so issued will be valid for the import of the items as allowed against the relevant export product in Appendix 17 or para 166(2) of this Policy, at the time of issue of the licence. 22. The objects of the policy are essentially to stimulate industrial growth by providing easy access to imported capital goods, raw materials and components, to substitute imports and promote self-reliance and to provide an impetus to exports by improving the quality of incentives. The Exim policy is an incident of the fiscal policy of the State and of its overall control over foreign trade. As an incident of its policy, the State may provide a regime of incentives. The provision of those incentives does not render the State a service provider or the person who avails of the incentives as a potential user of any service. The State, in exercise of its authority to utilise and collect revenue, puts in place diverse regulatory regimes under the law. The regime may provide for modalities for compliance, penalties for breach and incentives to achieve the purpose of the policy. The grant of these incentives does not constitute the State as a service provider. 23. Before a three judge Bench of this Court in Vikas Sales Corporation (supra), the issue for consideration was whether the transfer of an REP licence or Exim scrip to another constitutes a sale of goods within the meaning of state sales tax legislation. Explaining the objectives of the import policy, the Court held: 4. …..The objective behind the licences was to provide to the registered exporters the facility of importing the essential inputs required for the manufacture of the products exported. The essential idea was to encourage exports and for that purpose import licences called REP Licences were issued equal to the prescribed percentage of the value of exports. These licences were made freely transferable. It was provided that the transfer such licences did not require any endorsement or permission from the licencing authority. It was clarified that such would be: governed by the ordinary law. It only required a letter from the transferor recording and evidencing the transfer. On that basis, the transferee; became the due and lawful holder of the licence and could either import the goods permitted thereunder or sell it to another in turn. 24. In Bihar School Examination Board (supra) which was decided by a Bench of two judges, the issue was whether the Board of Examinations governed by state law is amenable to the jurisdiction of the District Forum under the Consumer Protection Act, 1986. Answering the question in the negative, this Court held: 12. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its services to any candidate. Nor does a student who participates in the examination conducted by the Board, hire or avail of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis-a-vis other examinees. The process is not, therefore, availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination. 25. In the circumstances, it was held that the Board is not a service provider and a student who takes an examination is not a consumer. 26. We are of the view that by analogy, the same principle must govern the present case for the reasons that we have indicated.
### Response:
1
### Explanation:
22. The objects of the policy are essentially to stimulate industrial growth by providing easy access to imported capital goods, raw materials and components, to substitute imports and promote self-reliance and to provide an impetus to exports by improving the quality of incentives. The Exim policy is an incident of the fiscal policy of the State and of its overall control over foreign trade. As an incident of its policy, the State may provide a regime of incentives. The provision of those incentives does not render the State a service provider or the person who avails of the incentives as a potential user of any service. The State, in exercise of its authority to utilise and collect revenue, puts in place diverse regulatory regimes under the law. The regime may provide for modalities for compliance, penalties for breach and incentives to achieve the purpose of the policy. The grant of these incentives does not constitute the State as a service provider24. In Bihar School Examination Board (supra) which was decided by a Bench of two judges, the issue was whether the Board of Examinations governed by state law is amenable to the jurisdiction of the District Forum under the Consumer Protection Act, 1986. Answering the question in the negative, this Court held:12. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its services to any candidate. Nor does a student who participates in the examination conducted by the Board, hire or avail of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis-a-vis other examinees. The process is not, therefore, availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination25. In the circumstances, it was held that the Board is not a service provider and a student who takes an examination is not a consumer26. We are of the view that by analogy, the same principle must govern the present case for the reasons that we have indicated.
|
Commissioner of Income-tax Kerala Vs. Helen Rubber Industries Limited | that part of the section does not apply to the assessee Companys case. What was thus claimed was the benefit of the earlier part, where the loss was allowed to be carried forward for six years.6. This position taken by the assessee Company can hardly be considered in view of the provisions of S. 32 of the Travancore Act, read with the Removal of Difficulties Order passed in 1950. Section 32 of the Travancore Act was a reproduction of the Indian S. 24(2) except for a change of the dates mentioned therein, due obviously to the fact that the Travancore Act came into force on the first day of Chingom, l122 M.E. (August 17, 1946). It is enough to point out that instead of "31st March" wherever they occurred, the words "the last day of Karkadakom" (August, 16) were substituted, and instead of the years, 1940, 1941, 1942, 1943 and 1944, were substituted the Malayalam years, l122 (17-8-1946 to 16-8l947), l123 (17-8-1947 to 16-8-1948), l124 (17-8-1948 to 16-8-1949), l125 (17-8-1949 to 16-8-1950), and l126 (17-8-1950 to 16-8-1951). These were the only differences between the two sections, and S. 24(2) of the Indian Income-tax Act, so modified, can be read as S. 32 of the Travancore Act.7. The existence of these two sections in the two Acts was likely to lead to some difficulty, and a question was likely to arise which law was to prevail. Section 12 of the Indian Finance Act, 1950, therefore, enabled the Central Government to pass an Order removing any such difficulty. The Taxation Laws (Part B States) (Removal of Difficulties) Order, 1950 was thus passed. Paragraph 3 of that order provided :"3. Carry forward and set off of previous losses.-Where in any previous year prior to the previous year for the assessment for the year ending on the 31st day of March 1950, an assessee has sustained a loss of profits or gains in any business, profession or vocation carried on by him, and such loss would, had the State law continued to be in force, have been set off against the profits and gains, if, any, from the same business chargeable to tax in the said year of assessment or in any year subsequent thereto, such loss would be so set off in the same manner, to the same extent, and up to the same year of assessment, as it would have been set off had the State law continued to be it force."8. The critical words are those contained in the latter part, namely, "in the same manner, to the same extent, and up to the same year of assessment, as it would have been set off had the State law continued to be in force." They show that the law to apply to the loss of "any previous year prior to the previous year for the assessment for the year ending on the 31st day of March, 1950," was the law, in force in a Part B State-here, the Travancore Act. Now, taking the case of the assessee Company ,we shall indicate which previous year or years would be governed by the Travancore Act. The previous year of the assessee Company for the assessment year ending 31st day of March, 1950 would be the Calendar year, 1-1-1949 to 31-12-1949. To that, the Indian Income-tax Act would apply. The application of the Travancore Act by Para. 3 of the Order was limited to the previous year before 1-1-1949 and other earlier previous years. The previous year, with which we are concerned, 1-1-1946 to 31-12-1946, is so clearly a previous year, to which the Travancore Act applies, that it does not admit of any doubt or difference. The matter is thus governed by the Travancore Act.9. The Travancore Act laid down, inter alia, that a loss arising in the previous year for the assessment for the year ending on the last day of Karkadakom, l123, could be carried forward for two years. The assessment year for l123 M. E. covered the period, 17-8-1947 to 16-8-1948, and the previous year of the assessee Company relative to that assessment year was 1-1-1946 to 31-12-1946. The loss of the Calendar year, 1946 could be carried forward to the Calendar years, 1947 and 1948 given effect to till the assessment year, 1125 (17-8-1949 to 16-8-1950). The assessment year, 1-4-1951 to 31-2-1952, corresponded to the account year of the assessee Company 1-1-1950 to 31-12-1950, and that is beyond two years, whether one takes the account year or the assessment year as the basis of the calculation of two years.10. The High Court with all due respect, was not right in thinking that the Removal of Difficulties Order 1950 was meant to enlarge the rights of the new assessees brought within the reach of the Indian Income-tax law. The intention of the law was to make a dividing line between those previous years to which the provisions of the earlier law would apply, and those previous years to which the provisions of the Indian Income-tax Act would apply. The rights were neither enlarged nor curtailed. As pointed out by Chagle, C.J., in the Indore Malwa United Mills, Ltd. v. Commissioner of Income-tax, Bombay, 1959-35 ITR 271 (Bom):"the only right integration has given to an assessee is the right contained in clauses (sic) 3 of the Removal of Difficulties Order, 1950, and that right is that if the law of his own State permitted him to carry forward the losses, then that right is preserved under the Indian Income-tax Act."Paragraph 3 of the Order clearly said that the right was available in the same manner, to the same extent and up to the same year of assessment, as laid down in the State law (here, the Travancore Act). Since, in this case, the carry-forward of the loss was for only two years, and those years were before the previous year from which the Indian Income-tax Act began to apply, there is no question of the application of the Indian Income-tax Act. | 1[ds]8. The critical words are those contained in the latter part, namely, "in the same manner, to the same extent, and up to the same year of assessment, as it would have been set off had the State law continued to be in force." They show that the law to apply to the loss of "any previous year prior to the previous year for the assessment for the year ending on the 31st day of March, 1950," was the law, in force in a Part B State-here, the Travancore Act. Now, taking the case of the assessee Company ,we shall indicate which previous year or years would be governed by the Travancore Act. The previous year of the assessee Company for the assessment year ending 31st day of March, 1950 would be the Calendar year, 1-1-1949 to 31-12-1949. To that, the Indian Income-tax Act would apply. The application of the Travancore Act by Para. 3 of the Order was limited to the previous year before 1-1-1949 and other earlier previous years. The previous year, with which we are concerned, 1-1-1946 to 31-12-1946, is so clearly a previous year, to which the Travancore Act applies, that it does not admit of any doubt or difference. The matter is thus governed by the Travancore Act.9. The Travancore Act laid down, inter alia, that a loss arising in the previous year for the assessment for the year ending on the last day of Karkadakom, l123, could be carried forward for two years. The assessment year for l123 M. E. covered the period, 17-8-1947 to 16-8-1948, and the previous year of the assessee Company relative to that assessment year was 1-1-1946 to 31-12-1946. The loss of the Calendar year, 1946 could be carried forward to the Calendar years, 1947 and 1948 given effect to till the assessment year, 1125 (17-8-1949 to 16-8-1950). The assessment year, 1-4-1951 to 31-2-1952, corresponded to the account year of the assessee Company 1-1-1950 to 31-12-1950, and that is beyond two years, whether one takes the account year or the assessment year as the basis of the calculation of two years.10. The High Court with all due respect, was not right in thinking that the Removal of Difficulties Order 1950 was meant to enlarge the rights of the new assessees brought within the reach of the Indian Income-tax law. | 1 | 2,318 | 447 | ### 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:
that part of the section does not apply to the assessee Companys case. What was thus claimed was the benefit of the earlier part, where the loss was allowed to be carried forward for six years.6. This position taken by the assessee Company can hardly be considered in view of the provisions of S. 32 of the Travancore Act, read with the Removal of Difficulties Order passed in 1950. Section 32 of the Travancore Act was a reproduction of the Indian S. 24(2) except for a change of the dates mentioned therein, due obviously to the fact that the Travancore Act came into force on the first day of Chingom, l122 M.E. (August 17, 1946). It is enough to point out that instead of "31st March" wherever they occurred, the words "the last day of Karkadakom" (August, 16) were substituted, and instead of the years, 1940, 1941, 1942, 1943 and 1944, were substituted the Malayalam years, l122 (17-8-1946 to 16-8l947), l123 (17-8-1947 to 16-8-1948), l124 (17-8-1948 to 16-8-1949), l125 (17-8-1949 to 16-8-1950), and l126 (17-8-1950 to 16-8-1951). These were the only differences between the two sections, and S. 24(2) of the Indian Income-tax Act, so modified, can be read as S. 32 of the Travancore Act.7. The existence of these two sections in the two Acts was likely to lead to some difficulty, and a question was likely to arise which law was to prevail. Section 12 of the Indian Finance Act, 1950, therefore, enabled the Central Government to pass an Order removing any such difficulty. The Taxation Laws (Part B States) (Removal of Difficulties) Order, 1950 was thus passed. Paragraph 3 of that order provided :"3. Carry forward and set off of previous losses.-Where in any previous year prior to the previous year for the assessment for the year ending on the 31st day of March 1950, an assessee has sustained a loss of profits or gains in any business, profession or vocation carried on by him, and such loss would, had the State law continued to be in force, have been set off against the profits and gains, if, any, from the same business chargeable to tax in the said year of assessment or in any year subsequent thereto, such loss would be so set off in the same manner, to the same extent, and up to the same year of assessment, as it would have been set off had the State law continued to be it force."8. The critical words are those contained in the latter part, namely, "in the same manner, to the same extent, and up to the same year of assessment, as it would have been set off had the State law continued to be in force." They show that the law to apply to the loss of "any previous year prior to the previous year for the assessment for the year ending on the 31st day of March, 1950," was the law, in force in a Part B State-here, the Travancore Act. Now, taking the case of the assessee Company ,we shall indicate which previous year or years would be governed by the Travancore Act. The previous year of the assessee Company for the assessment year ending 31st day of March, 1950 would be the Calendar year, 1-1-1949 to 31-12-1949. To that, the Indian Income-tax Act would apply. The application of the Travancore Act by Para. 3 of the Order was limited to the previous year before 1-1-1949 and other earlier previous years. The previous year, with which we are concerned, 1-1-1946 to 31-12-1946, is so clearly a previous year, to which the Travancore Act applies, that it does not admit of any doubt or difference. The matter is thus governed by the Travancore Act.9. The Travancore Act laid down, inter alia, that a loss arising in the previous year for the assessment for the year ending on the last day of Karkadakom, l123, could be carried forward for two years. The assessment year for l123 M. E. covered the period, 17-8-1947 to 16-8-1948, and the previous year of the assessee Company relative to that assessment year was 1-1-1946 to 31-12-1946. The loss of the Calendar year, 1946 could be carried forward to the Calendar years, 1947 and 1948 given effect to till the assessment year, 1125 (17-8-1949 to 16-8-1950). The assessment year, 1-4-1951 to 31-2-1952, corresponded to the account year of the assessee Company 1-1-1950 to 31-12-1950, and that is beyond two years, whether one takes the account year or the assessment year as the basis of the calculation of two years.10. The High Court with all due respect, was not right in thinking that the Removal of Difficulties Order 1950 was meant to enlarge the rights of the new assessees brought within the reach of the Indian Income-tax law. The intention of the law was to make a dividing line between those previous years to which the provisions of the earlier law would apply, and those previous years to which the provisions of the Indian Income-tax Act would apply. The rights were neither enlarged nor curtailed. As pointed out by Chagle, C.J., in the Indore Malwa United Mills, Ltd. v. Commissioner of Income-tax, Bombay, 1959-35 ITR 271 (Bom):"the only right integration has given to an assessee is the right contained in clauses (sic) 3 of the Removal of Difficulties Order, 1950, and that right is that if the law of his own State permitted him to carry forward the losses, then that right is preserved under the Indian Income-tax Act."Paragraph 3 of the Order clearly said that the right was available in the same manner, to the same extent and up to the same year of assessment, as laid down in the State law (here, the Travancore Act). Since, in this case, the carry-forward of the loss was for only two years, and those years were before the previous year from which the Indian Income-tax Act began to apply, there is no question of the application of the Indian Income-tax Act.
### Response:
1
### Explanation:
8. The critical words are those contained in the latter part, namely, "in the same manner, to the same extent, and up to the same year of assessment, as it would have been set off had the State law continued to be in force." They show that the law to apply to the loss of "any previous year prior to the previous year for the assessment for the year ending on the 31st day of March, 1950," was the law, in force in a Part B State-here, the Travancore Act. Now, taking the case of the assessee Company ,we shall indicate which previous year or years would be governed by the Travancore Act. The previous year of the assessee Company for the assessment year ending 31st day of March, 1950 would be the Calendar year, 1-1-1949 to 31-12-1949. To that, the Indian Income-tax Act would apply. The application of the Travancore Act by Para. 3 of the Order was limited to the previous year before 1-1-1949 and other earlier previous years. The previous year, with which we are concerned, 1-1-1946 to 31-12-1946, is so clearly a previous year, to which the Travancore Act applies, that it does not admit of any doubt or difference. The matter is thus governed by the Travancore Act.9. The Travancore Act laid down, inter alia, that a loss arising in the previous year for the assessment for the year ending on the last day of Karkadakom, l123, could be carried forward for two years. The assessment year for l123 M. E. covered the period, 17-8-1947 to 16-8-1948, and the previous year of the assessee Company relative to that assessment year was 1-1-1946 to 31-12-1946. The loss of the Calendar year, 1946 could be carried forward to the Calendar years, 1947 and 1948 given effect to till the assessment year, 1125 (17-8-1949 to 16-8-1950). The assessment year, 1-4-1951 to 31-2-1952, corresponded to the account year of the assessee Company 1-1-1950 to 31-12-1950, and that is beyond two years, whether one takes the account year or the assessment year as the basis of the calculation of two years.10. The High Court with all due respect, was not right in thinking that the Removal of Difficulties Order 1950 was meant to enlarge the rights of the new assessees brought within the reach of the Indian Income-tax law.
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Madan Mohan Bhakat Vs. State of West Bengal and Ors | prescribed purpose, the Additional District Magistrate issued a notice to the aforesaid five persons on 31st March, 1975.6. The admitted position is that the notice was received by Chinmoy Marjit. The dispute is whether it was received by Chinmoy Marjit for himself or on behalf of himself and his brothers.7. In any event, a reply was sent to the show-cause notice by Chinmoy Marjit on 11th April, 1975. In the reply, he stated that the land was never used as agricultural land and that it was shown to be agricultural land in the revenue records by mistake.8. The reply was considered by the Additional District Magistrate who passed an order on 4th August, 1975 where he noted the contention raised by Chinmoy Marjit, but concluded that the land was actually required to be used only for agricultural purposes and could not have been for a cattle Hat. Accordingly, he ordered that the land be sold Under Section 4(4) of the West Bengal Land Reforms Act, 1955 (for short "the Act"). Subsequently, on 8th October, 1975, he directed the Sub-Divisional Land Reforms Officer to hold an auction and to put up the matter before him for approval.9. After the order was passed by the Additional District Magistrate, a representation was made on 16th October, 1975 by Dhruba Marjit. It is stated in the representation that the share of Chinmoy Marjit had been sold by him three years earlier and that the notice sent by the Additional District Magistrate on 31st March, 1975 was not served upon him (Dhruba Marjit). It is not clear from a reading of the latter whether Dhruba Marjit wrote the letter on his own behalf or on behalf of himself and his brothers.10. Be that as it may, since the representation was not replied to, a writ petition was filed by the Marjit family being Civil Rule No. 19111 (w) of 1975. It is significant to note that the Petitioners in that case were Ram Kumar Marjit, Sushil Kumar Marjit, Dhruba Marjit and Chinmoy Marjit. It appears that the fifth brother, i.e., Jyotirmoy Marjit was not a party to the writ petition.11. In any event, the writ petition was heard by the learned Single Judge on 17th September, 1979 when an order was passed to the effect that service of notice on Chinmoy Marjit was adequate service of notice on all the brothers. It was noticed by the learned Single Judge that there was nothing to indicate that the brothers were not members of the same family or that they were inimical towards each other. The learned Single Judge also considered the provisions of the West Bengal Land Reforms Rules, 1965 and came to the conclusion that there was nothing to indicate that service of notice was required to be served on each individual raiyat. Accordingly, the writ petition was dismissed by the learned Single Judge.12. Feeling aggrieved, an appeal was filed by the four brothers being F.M.A.T. No. 3063 of 1979 before the Division Bench. The Division Bench allowed the appeal filed by the four brothers by a judgment and order dated 25th November, 2003. It was held by the Division Bench that subsequent to the orders passed by the Additional District Magistrate, an auction sale was in fact held on 24th October, 1975, but that it deserved to be quashed because service was not effected on all the affected parties. The Division Bench directed that the auction purchaser will be entitled to a refund of the sum deposited by him along with interest.13. Feeling aggrieved, the auction purchaser has preferred this appeal.14. The only issue canvassed before us by learned Counsel for the Appellant and which we have adverted to earlier is to the effect that it was not necessary to serve the notice dated 31st March, 1975 on each of the raiyats or each of the brothers in the Marjit family. It was contended by the Appellant-auction purchaser that the notice was served on Chinmoy Marjit and that was adequate service on all the brothers, particularly since they were living under the same roof. As mentioned above, there was nothing to indicate that the relations between the brothers were not cordial.15. The submission advanced by learned Counsel for the Appellant is disputed by learned Counsel for the Marjit brothers who say that notice should have been served on each one of them. At this stage, it may be noticed that the Marjit brothers have sold a substantial portion of their share to third parties who are also before us and are represented by the same learned Counsel. The submission on behalf of the subsequent purchasers is to the same effect, viz., that the notice should have been served on each one of the Marjit brothers.16. Learned Counsel for the State of West Bengal supports the auction purchaser/Appellant before us.17. In our opinion, there is no substance in the contention on behalf of the Marjit brothers and the Respondents who are the subsequent purchasers. There is nothing in the West Bengal Land Reforms Act, 1955 or the Rules framed thereunder which requires that the notice dated 31st March, 1975 should have been served on each one of the Marjit brothers individually. There is nothing to indicate that Chinmoy Marjit did not represent his brothers when he submitted a reply to the Additional-District Magistrate on 11th April, 1975. There is also nothing to indicate that the relations between the Marjit brothers were not cordial, in fact all of them were living under the same roof and it is unlikely that the other brothers were not aware of receipt of the notice by Chinmoy Marjit.18. We are of the view that the service of notice on Chinmoy Marjit was effective service of notice on all the Marjit brothers and that they were fully aware of the service of notice, but they did not choose to file independent replies and apparently were satisfied that the reply sent by Chinmoy Marjit was on behalf of his brothers as well. | 1[ds]17. In our opinion, there is no substance in the contention on behalf of the Marjit brothers and the Respondents who are the subsequent purchasers. There is nothing in the West Bengal Land Reforms Act, 1955 or the Rules framed thereunder which requires that the notice dated 31st March, 1975 should have been served on each one of the Marjit brothers individually. There is nothing to indicate that Chinmoy Marjit did not represent his brothers when he submitted a reply to the Additional-District Magistrate on 11th April, 1975. There is also nothing to indicate that the relations between the Marjit brothers were not cordial, in fact all of them were living under the same roof and it is unlikely that the other brothers were not aware of receipt of the notice by Chinmoy Marjit18. We are of the view that the service of notice on Chinmoy Marjit was effective service of notice on all the Marjit brothers and that they were fully aware of the service of notice, but they did not choose to file independent replies and apparently were satisfied that the reply sent by Chinmoy Marjit was on behalf of his brothers as well. | 1 | 1,240 | 212 | ### 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:
prescribed purpose, the Additional District Magistrate issued a notice to the aforesaid five persons on 31st March, 1975.6. The admitted position is that the notice was received by Chinmoy Marjit. The dispute is whether it was received by Chinmoy Marjit for himself or on behalf of himself and his brothers.7. In any event, a reply was sent to the show-cause notice by Chinmoy Marjit on 11th April, 1975. In the reply, he stated that the land was never used as agricultural land and that it was shown to be agricultural land in the revenue records by mistake.8. The reply was considered by the Additional District Magistrate who passed an order on 4th August, 1975 where he noted the contention raised by Chinmoy Marjit, but concluded that the land was actually required to be used only for agricultural purposes and could not have been for a cattle Hat. Accordingly, he ordered that the land be sold Under Section 4(4) of the West Bengal Land Reforms Act, 1955 (for short "the Act"). Subsequently, on 8th October, 1975, he directed the Sub-Divisional Land Reforms Officer to hold an auction and to put up the matter before him for approval.9. After the order was passed by the Additional District Magistrate, a representation was made on 16th October, 1975 by Dhruba Marjit. It is stated in the representation that the share of Chinmoy Marjit had been sold by him three years earlier and that the notice sent by the Additional District Magistrate on 31st March, 1975 was not served upon him (Dhruba Marjit). It is not clear from a reading of the latter whether Dhruba Marjit wrote the letter on his own behalf or on behalf of himself and his brothers.10. Be that as it may, since the representation was not replied to, a writ petition was filed by the Marjit family being Civil Rule No. 19111 (w) of 1975. It is significant to note that the Petitioners in that case were Ram Kumar Marjit, Sushil Kumar Marjit, Dhruba Marjit and Chinmoy Marjit. It appears that the fifth brother, i.e., Jyotirmoy Marjit was not a party to the writ petition.11. In any event, the writ petition was heard by the learned Single Judge on 17th September, 1979 when an order was passed to the effect that service of notice on Chinmoy Marjit was adequate service of notice on all the brothers. It was noticed by the learned Single Judge that there was nothing to indicate that the brothers were not members of the same family or that they were inimical towards each other. The learned Single Judge also considered the provisions of the West Bengal Land Reforms Rules, 1965 and came to the conclusion that there was nothing to indicate that service of notice was required to be served on each individual raiyat. Accordingly, the writ petition was dismissed by the learned Single Judge.12. Feeling aggrieved, an appeal was filed by the four brothers being F.M.A.T. No. 3063 of 1979 before the Division Bench. The Division Bench allowed the appeal filed by the four brothers by a judgment and order dated 25th November, 2003. It was held by the Division Bench that subsequent to the orders passed by the Additional District Magistrate, an auction sale was in fact held on 24th October, 1975, but that it deserved to be quashed because service was not effected on all the affected parties. The Division Bench directed that the auction purchaser will be entitled to a refund of the sum deposited by him along with interest.13. Feeling aggrieved, the auction purchaser has preferred this appeal.14. The only issue canvassed before us by learned Counsel for the Appellant and which we have adverted to earlier is to the effect that it was not necessary to serve the notice dated 31st March, 1975 on each of the raiyats or each of the brothers in the Marjit family. It was contended by the Appellant-auction purchaser that the notice was served on Chinmoy Marjit and that was adequate service on all the brothers, particularly since they were living under the same roof. As mentioned above, there was nothing to indicate that the relations between the brothers were not cordial.15. The submission advanced by learned Counsel for the Appellant is disputed by learned Counsel for the Marjit brothers who say that notice should have been served on each one of them. At this stage, it may be noticed that the Marjit brothers have sold a substantial portion of their share to third parties who are also before us and are represented by the same learned Counsel. The submission on behalf of the subsequent purchasers is to the same effect, viz., that the notice should have been served on each one of the Marjit brothers.16. Learned Counsel for the State of West Bengal supports the auction purchaser/Appellant before us.17. In our opinion, there is no substance in the contention on behalf of the Marjit brothers and the Respondents who are the subsequent purchasers. There is nothing in the West Bengal Land Reforms Act, 1955 or the Rules framed thereunder which requires that the notice dated 31st March, 1975 should have been served on each one of the Marjit brothers individually. There is nothing to indicate that Chinmoy Marjit did not represent his brothers when he submitted a reply to the Additional-District Magistrate on 11th April, 1975. There is also nothing to indicate that the relations between the Marjit brothers were not cordial, in fact all of them were living under the same roof and it is unlikely that the other brothers were not aware of receipt of the notice by Chinmoy Marjit.18. We are of the view that the service of notice on Chinmoy Marjit was effective service of notice on all the Marjit brothers and that they were fully aware of the service of notice, but they did not choose to file independent replies and apparently were satisfied that the reply sent by Chinmoy Marjit was on behalf of his brothers as well.
### Response:
1
### Explanation:
17. In our opinion, there is no substance in the contention on behalf of the Marjit brothers and the Respondents who are the subsequent purchasers. There is nothing in the West Bengal Land Reforms Act, 1955 or the Rules framed thereunder which requires that the notice dated 31st March, 1975 should have been served on each one of the Marjit brothers individually. There is nothing to indicate that Chinmoy Marjit did not represent his brothers when he submitted a reply to the Additional-District Magistrate on 11th April, 1975. There is also nothing to indicate that the relations between the Marjit brothers were not cordial, in fact all of them were living under the same roof and it is unlikely that the other brothers were not aware of receipt of the notice by Chinmoy Marjit18. We are of the view that the service of notice on Chinmoy Marjit was effective service of notice on all the Marjit brothers and that they were fully aware of the service of notice, but they did not choose to file independent replies and apparently were satisfied that the reply sent by Chinmoy Marjit was on behalf of his brothers as well.
|
Babu Ram Prakash Chandra Maheshwari Vs. Antarim Zila Parishad Muzaffar Nagar | issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But, as observed by this Court in Rashid Ahmed v. Municipal Board, Kairana, 1950 SCR 566 = (AIR 1950 SC 163 ), "the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs" and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefor. But it should be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self-imposed limitation, a rule of policy, and discretion rather than a rule of law and the Court may therefore in exceptional cases issue a writ such as a writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted. In State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595 605 = (AIR 1958 SC 86 , 93), S. R. Das, C. J., speaking for the Court, observed:"In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. (Halsburys Laws of England, 3rd Ed., Vol. II, p, 130 and the cases cited there). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior Court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior Courts subordinate to it and ordinarily the Superior Court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. In the King v. Postmaster-General Ex parte Carmichael, (1928 (1) KB 291) a certiorari was issued although the aggrieved party had an alternative remedy by way of appeal. It has been held that the superior Court will readily issue a certiorari in a case where there has been a denial of natural justice before a Court of summary jurisdiction. The case of Rex v. Wandsworth Justices Ex parte Read, 1942 (1) KB 281 is an authority in point. In that case a man had been convicted in a court of summary jurisdiction without giving him an opportunity of being heard. It was held that his remedy was not by a case stated or by an appeal before the quarter sessions but by application to the High Court for an order of certiorari to remove and quash the conviction."There are at least two well-recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well-settled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires it is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course. - (See the decisions of this court in Carl Still G. m. b. H. v. State of Bihar, AIR 1961 SC 1615 and Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 2 SCR 603 = (AIR 1955 SC 661 ). In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice. (See 1958 SCR 595 , 605 = (AIR 1958 SC 86 , 93)).4. It is manifest in the present case that the appellant had alleged in the writ petition that the Taxing Officer had no authority to impose the tax and there was no validly constituted Antarim Zila Parishad after December 31, 1959. It was further alleged that Sections 114 and 124 of the U. P. District Boards Act No. X of 1922 violated Article 14 of Constitution as arbitrary power was granted to District Boards as well as the State Government to exempt any person or class of persons or any property or class of properties from the scope of the Act. There is also an allegation that the imposition of the tax violated the provisions of Article 276 of the Constitution and that the Antarim Zila Parishad could not impose the tax beyond the maximum limit of Rs. 250/- per annum prescribed in that Article. It was further contended on behalf of the appellant that the procedure for assessment of the tax was not followed and there was violation of the principles of natural justice. In view of the allegations of the appellant that the taxing provisions are ultra vires and that there was violation of the principles of natural justice, we think that the High Court was in error in summarily dismissing writ petition on the ground that the appellant had an alternative remedy of statutory appeal. It was contended Mr. Chagla on behalf of the respondent that in dismissing the writ petition the High Court was acting in its discretion. But it is manifest in the present case that the discretion of the High Court has not been exercised in accordance with law and the judgments of the Division Bench dated March 27, 1964 and of the learned single Judge dated February 13, 1964 summarily dismissing the writ petition are defective in law. | 1[ds]3. It is a well-established proposition of law that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ.It is manifest in the present case that the appellant had alleged in the writ petition that the Taxing Officer had no authority to impose the tax and there was no validly constituted Antarim Zila Parishad after December 31, 1959. It was further alleged that Sections 114 and 124 of the U. P. District Boards Act No. X of 1922 violated Article 14 of Constitution as arbitrary power was granted to District Boards as well as the State Government to exempt any person or class of persons or any property or class of properties from the scope of the Act. There is also an allegation that the imposition of the tax violated the provisions of Article 276 of the Constitution and that the Antarim Zila Parishad could not impose the tax beyond the maximum limit of Rs. 250/- per annum prescribed in that Article. It was further contended on behalf of the appellant that the procedure for assessment of the tax was not followed and there was violation of the principles of natural justice. In view of the allegations of the appellant that the taxing provisions are ultra vires and that there was violation of the principles of natural justice, we think that the High Court was in error in summarily dismissing writ petition on the ground that the appellant had an alternative remedy of statutory appeal. It was contended Mr. Chagla on behalf of the respondent that in dismissing the writ petition the High Court was acting in its discretion. But it is manifest in the present case that the discretion of the High Court has not been exercised in accordance with law and the judgments of the Division Bench dated March 27, 1964 and of the learned single Judge dated February 13, 1964 summarily dismissing the writ petition are defective in law. | 1 | 2,506 | 390 | ### 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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issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But, as observed by this Court in Rashid Ahmed v. Municipal Board, Kairana, 1950 SCR 566 = (AIR 1950 SC 163 ), "the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs" and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefor. But it should be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self-imposed limitation, a rule of policy, and discretion rather than a rule of law and the Court may therefore in exceptional cases issue a writ such as a writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted. In State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595 605 = (AIR 1958 SC 86 , 93), S. R. Das, C. J., speaking for the Court, observed:"In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. (Halsburys Laws of England, 3rd Ed., Vol. II, p, 130 and the cases cited there). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior Court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior Courts subordinate to it and ordinarily the Superior Court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. In the King v. Postmaster-General Ex parte Carmichael, (1928 (1) KB 291) a certiorari was issued although the aggrieved party had an alternative remedy by way of appeal. It has been held that the superior Court will readily issue a certiorari in a case where there has been a denial of natural justice before a Court of summary jurisdiction. The case of Rex v. Wandsworth Justices Ex parte Read, 1942 (1) KB 281 is an authority in point. In that case a man had been convicted in a court of summary jurisdiction without giving him an opportunity of being heard. It was held that his remedy was not by a case stated or by an appeal before the quarter sessions but by application to the High Court for an order of certiorari to remove and quash the conviction."There are at least two well-recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well-settled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires it is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course. - (See the decisions of this court in Carl Still G. m. b. H. v. State of Bihar, AIR 1961 SC 1615 and Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 2 SCR 603 = (AIR 1955 SC 661 ). In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice. (See 1958 SCR 595 , 605 = (AIR 1958 SC 86 , 93)).4. It is manifest in the present case that the appellant had alleged in the writ petition that the Taxing Officer had no authority to impose the tax and there was no validly constituted Antarim Zila Parishad after December 31, 1959. It was further alleged that Sections 114 and 124 of the U. P. District Boards Act No. X of 1922 violated Article 14 of Constitution as arbitrary power was granted to District Boards as well as the State Government to exempt any person or class of persons or any property or class of properties from the scope of the Act. There is also an allegation that the imposition of the tax violated the provisions of Article 276 of the Constitution and that the Antarim Zila Parishad could not impose the tax beyond the maximum limit of Rs. 250/- per annum prescribed in that Article. It was further contended on behalf of the appellant that the procedure for assessment of the tax was not followed and there was violation of the principles of natural justice. In view of the allegations of the appellant that the taxing provisions are ultra vires and that there was violation of the principles of natural justice, we think that the High Court was in error in summarily dismissing writ petition on the ground that the appellant had an alternative remedy of statutory appeal. It was contended Mr. Chagla on behalf of the respondent that in dismissing the writ petition the High Court was acting in its discretion. But it is manifest in the present case that the discretion of the High Court has not been exercised in accordance with law and the judgments of the Division Bench dated March 27, 1964 and of the learned single Judge dated February 13, 1964 summarily dismissing the writ petition are defective in law.
### Response:
1
### Explanation:
3. It is a well-established proposition of law that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ.It is manifest in the present case that the appellant had alleged in the writ petition that the Taxing Officer had no authority to impose the tax and there was no validly constituted Antarim Zila Parishad after December 31, 1959. It was further alleged that Sections 114 and 124 of the U. P. District Boards Act No. X of 1922 violated Article 14 of Constitution as arbitrary power was granted to District Boards as well as the State Government to exempt any person or class of persons or any property or class of properties from the scope of the Act. There is also an allegation that the imposition of the tax violated the provisions of Article 276 of the Constitution and that the Antarim Zila Parishad could not impose the tax beyond the maximum limit of Rs. 250/- per annum prescribed in that Article. It was further contended on behalf of the appellant that the procedure for assessment of the tax was not followed and there was violation of the principles of natural justice. In view of the allegations of the appellant that the taxing provisions are ultra vires and that there was violation of the principles of natural justice, we think that the High Court was in error in summarily dismissing writ petition on the ground that the appellant had an alternative remedy of statutory appeal. It was contended Mr. Chagla on behalf of the respondent that in dismissing the writ petition the High Court was acting in its discretion. But it is manifest in the present case that the discretion of the High Court has not been exercised in accordance with law and the judgments of the Division Bench dated March 27, 1964 and of the learned single Judge dated February 13, 1964 summarily dismissing the writ petition are defective in law.
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Arjun Prasad Vs. Shantilal Shankarlal Shah And Others(And Connected Appeal) | binding on all the creditors or the class of creditors, or on all members or class of members, as the case may be and also on the company, or, in the case of a company in the course of being wound up, on the liquidator and contributories of the Company." 8. The agreement has to be of a majority in number representing three-fourths in value of those who are present either in person or by proxy at the meeting. The agreement of those who are not present at the meeting either in person or by proxy cannot be taken into consideration. Any creditor, whether a corporation or a natural person can be present at a meeting by proxy. A natural person can of course be present at a meeting "in person". Can a corporation be present at a meeting "in person"? It appears to us that unless there is some special provision by a law, a company which is not a physical person cannot "be present" at any place "in person". It is true that under the General Clauses Act, 1897, a company is a "person", so that whenever the word "person" is used in any statute a company would be included thereunder. The definition, in the General Clauses Act can however be of no assistance in interpreting the words "to be present in person", and the difficulty in the way of a company being present in person can be obviated only by statutory provisions of rules having the force of law. 9. Nor can the appellant derive any assistance from the English case In re Kelantan Coco Nut Estate Limited and Reduced, 1920 WN 274 cited by, the learned counsel. In that case, the Court was dealing with a petition for reduction of capital. In deciding whether the special resolution to reduce the capital of the company had been duly passed, the Court had to consider whether there was a quorum at the confirmatory meeting, at which one member of the company and one representative appointed under S. 68 of the Companies (Consolidation) Act, 1908 to represent a shareholder of the company, the Eastern Development Corporation, Limited, were present. The Articles of Association provided: "two members personally present shall be a quorum." It was held that a representative appointed under S. 68 should be taken into account in considering whether there was a quorum. The provisions of S. 68 were similar to those of S. 80 of the Indian Companies Act, 1913 and there- under a company which is a member of another company may, by resolution of the directors authorise any of its officials or any other person to act as its representative at any meeting of that other company. The presence of such a representative was taken in the above case to amount to personal presence of a member of the company. The case does not deal with the question of a creditor Company. 10. In the Indian Companies Act, 1956 a provision has been introduced under which a company which is a creditor of another company may by resolution of its directors, authorise such person as it thinks fit to act as its representative at any meeting of any creditors of the company held in pursuance of the Act and a person authorised in this manner shall be entitled to exercise the same rights and powers (including the right to vote by proxy) on behalf of the company. (S. 187 (1) (b) and (2)). No such provision however is to be found in the Indian Companies Act, 1913. It is unnecessary for us to consider whether under this new provision the attendance of a person authorised in this manner at a meeting of the creditors will amount to attendance of the creditor company "in person." For, the present case is governed by the provisions of the Indian companies Act, 1913 and not by this new provisions. 11. When the Companies Act was amended in 1936, an addition was made in S. 246 which empowers the High Court to make rules, concerning the mode of proceedings inter alia "for the holding of meetings of creditors and members in connection with proceedings under S.153 of this Act." Accordingly, a number of Rules were framed by the Patna High Court in exercise of this additional power. Rule 144 of the Rules states that a creditor or contributor may vote either in person or by proxy. Rules 145 to 153 deal with various questions as regards proxies. Of these Rule 150 lays down how a proxy is to be given where a creditor is a corporation. Admittedly, no proxy in accordance with Rule 150 was given by the two creditor companies, Bhandani Brothers and the Hindustan Coal Company, in the present case. There is nothing in these rules which can assist Mr. Sastris argument that a resolution by the directors of the company authorising a director or some other person to represent the company at the creditors meeting makes him "present in person" in law for that company at the meeting, 12. Mr. Sastris last argument was that as the business of the company has to be managed by the directors and the directors can delegate any of their powers to any one of themselves, the attendance of Arjun Prasad at the meeting should reasonably be construed as the attendance of all the directors and so the attendance of the company "in person." As we have already indicated it does not appear to us that in the Act of 1913 there is any provision for attendance of the company "in person", but apart from that we wish to point out that the resolution made by the two companies do not appear to us to delegate the powers of the directors to Arjun Prasad. 13. The conclusion of the High Court that the votes cast by Arjun Prasad on behalf of the two companies, viz. Bhandani Brothers and the Hindustan Coal Company, were not valid votes is, in our opinion, correct. | 0[ds]It therefore could not be disputed and was not disputed that an appeal did lie from the order made by the Company Judge on 6th October 1953The "Court" here cannot but mean the Court exercising original jurisdiction. When the Company Judge exercises the jurisdiction he does it under the provisions of S. 3 of the Companies Act, which says that the Court having jurisdiction under this Act shall be the High Court having jurisdiction in the place at which the registered office of the company is situate. The authority authorised to hear appeals from appealable decisions of a Single Judge of the Patna High Court when exercising original jurisdiction lie to the High Court and not to this Court. (Vide Clause 10 of the Letters Patent). It necessarily follows that the appeal from the order of the Company Judge lay to the High Court and not to this Court. There is, therefore, no substance in the first point raised on behalf of the appellantIt is undoubtedly true that the opposing creditor were guilty of negligence in not drawing the attention of the Chairman to what they considered to be a defect in the voting on behalf of the two creditor companies, viz., Bhandani Brothers and the Hindustan Coal Co. and no less negligent in not bringing this to the Courts notice at the earliest opportunity. Laches on the part of some creditors cannot however justify the Chairman or the Court in disobeying the requirements of the Act. If in law the two votes cast by Arjun Prasad for these two creditor companies were not validly cast the three-fourths majority requisite under S.153, sub-s. (2) would not be there and so no further action under S. l53 could be taken by the Court in the matter. How can the Court turn a blind eye to the fact, if proved, that on the basis of valid votes at the meeting the requisite majority was not obtained, merely because the Chairmans attention was not drawn to the defect or it was not brought to the Courts notice earlierIn our opinion, the learned Judges who heard the appeal were right in thinking that however deplorable the delay by opposing creditors in raising the objection might be, that would not be a sufficient reason for refusing to entertain the objectionIt appears to us that unless there is some special provision by a law, a company which is not a physical person cannot "be present" at any place "in person". It is true that under the General Clauses Act, 1897, a company is a "person", so that whenever the word "person" is used in any statute a company would be included thereunder. The definition, in the General Clauses Act can however be of no assistance in interpreting the words "to be present in person", and the difficulty in the way of a company being present in person can be obviated only by statutory provisions of rules having the force of lawIt is unnecessary for us to consider whether under this new provision the attendance of a person authorised in this manner at a meeting of the creditors will amount to attendance of the creditor company "in person." For, the present case is governed by the provisions of the Indian companies Act, 1913 and not by this new provisionsAdmittedly, no proxy in accordance with Rule 150 was given by the two creditor companies, Bhandani Brothers and the Hindustan Coal Company, in the present case. There is nothing in these rules which can assist Mr. Sastris argument that a resolution by the directors of the company authorising a director or some other person to represent the company at the creditors meeting makes him "present in person" in law for that company at the meeting,As we have already indicated it does not appear to us that in the Act of 1913 there is any provision for attendance of the company "in person", but apart from that we wish to point out that the resolution made by the two companies do not appear to us to delegate the powers of the directors to Arjun Prasad13. The conclusion of the High Court that the votes cast by Arjun Prasad on behalf of the two companies, viz. Bhandani Brothers and the Hindustan Coal Company, were not valid votes is, in our opinion, correct. | 0 | 2,590 | 794 | ### 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:
binding on all the creditors or the class of creditors, or on all members or class of members, as the case may be and also on the company, or, in the case of a company in the course of being wound up, on the liquidator and contributories of the Company." 8. The agreement has to be of a majority in number representing three-fourths in value of those who are present either in person or by proxy at the meeting. The agreement of those who are not present at the meeting either in person or by proxy cannot be taken into consideration. Any creditor, whether a corporation or a natural person can be present at a meeting by proxy. A natural person can of course be present at a meeting "in person". Can a corporation be present at a meeting "in person"? It appears to us that unless there is some special provision by a law, a company which is not a physical person cannot "be present" at any place "in person". It is true that under the General Clauses Act, 1897, a company is a "person", so that whenever the word "person" is used in any statute a company would be included thereunder. The definition, in the General Clauses Act can however be of no assistance in interpreting the words "to be present in person", and the difficulty in the way of a company being present in person can be obviated only by statutory provisions of rules having the force of law. 9. Nor can the appellant derive any assistance from the English case In re Kelantan Coco Nut Estate Limited and Reduced, 1920 WN 274 cited by, the learned counsel. In that case, the Court was dealing with a petition for reduction of capital. In deciding whether the special resolution to reduce the capital of the company had been duly passed, the Court had to consider whether there was a quorum at the confirmatory meeting, at which one member of the company and one representative appointed under S. 68 of the Companies (Consolidation) Act, 1908 to represent a shareholder of the company, the Eastern Development Corporation, Limited, were present. The Articles of Association provided: "two members personally present shall be a quorum." It was held that a representative appointed under S. 68 should be taken into account in considering whether there was a quorum. The provisions of S. 68 were similar to those of S. 80 of the Indian Companies Act, 1913 and there- under a company which is a member of another company may, by resolution of the directors authorise any of its officials or any other person to act as its representative at any meeting of that other company. The presence of such a representative was taken in the above case to amount to personal presence of a member of the company. The case does not deal with the question of a creditor Company. 10. In the Indian Companies Act, 1956 a provision has been introduced under which a company which is a creditor of another company may by resolution of its directors, authorise such person as it thinks fit to act as its representative at any meeting of any creditors of the company held in pursuance of the Act and a person authorised in this manner shall be entitled to exercise the same rights and powers (including the right to vote by proxy) on behalf of the company. (S. 187 (1) (b) and (2)). No such provision however is to be found in the Indian Companies Act, 1913. It is unnecessary for us to consider whether under this new provision the attendance of a person authorised in this manner at a meeting of the creditors will amount to attendance of the creditor company "in person." For, the present case is governed by the provisions of the Indian companies Act, 1913 and not by this new provisions. 11. When the Companies Act was amended in 1936, an addition was made in S. 246 which empowers the High Court to make rules, concerning the mode of proceedings inter alia "for the holding of meetings of creditors and members in connection with proceedings under S.153 of this Act." Accordingly, a number of Rules were framed by the Patna High Court in exercise of this additional power. Rule 144 of the Rules states that a creditor or contributor may vote either in person or by proxy. Rules 145 to 153 deal with various questions as regards proxies. Of these Rule 150 lays down how a proxy is to be given where a creditor is a corporation. Admittedly, no proxy in accordance with Rule 150 was given by the two creditor companies, Bhandani Brothers and the Hindustan Coal Company, in the present case. There is nothing in these rules which can assist Mr. Sastris argument that a resolution by the directors of the company authorising a director or some other person to represent the company at the creditors meeting makes him "present in person" in law for that company at the meeting, 12. Mr. Sastris last argument was that as the business of the company has to be managed by the directors and the directors can delegate any of their powers to any one of themselves, the attendance of Arjun Prasad at the meeting should reasonably be construed as the attendance of all the directors and so the attendance of the company "in person." As we have already indicated it does not appear to us that in the Act of 1913 there is any provision for attendance of the company "in person", but apart from that we wish to point out that the resolution made by the two companies do not appear to us to delegate the powers of the directors to Arjun Prasad. 13. The conclusion of the High Court that the votes cast by Arjun Prasad on behalf of the two companies, viz. Bhandani Brothers and the Hindustan Coal Company, were not valid votes is, in our opinion, correct.
### Response:
0
### Explanation:
It therefore could not be disputed and was not disputed that an appeal did lie from the order made by the Company Judge on 6th October 1953The "Court" here cannot but mean the Court exercising original jurisdiction. When the Company Judge exercises the jurisdiction he does it under the provisions of S. 3 of the Companies Act, which says that the Court having jurisdiction under this Act shall be the High Court having jurisdiction in the place at which the registered office of the company is situate. The authority authorised to hear appeals from appealable decisions of a Single Judge of the Patna High Court when exercising original jurisdiction lie to the High Court and not to this Court. (Vide Clause 10 of the Letters Patent). It necessarily follows that the appeal from the order of the Company Judge lay to the High Court and not to this Court. There is, therefore, no substance in the first point raised on behalf of the appellantIt is undoubtedly true that the opposing creditor were guilty of negligence in not drawing the attention of the Chairman to what they considered to be a defect in the voting on behalf of the two creditor companies, viz., Bhandani Brothers and the Hindustan Coal Co. and no less negligent in not bringing this to the Courts notice at the earliest opportunity. Laches on the part of some creditors cannot however justify the Chairman or the Court in disobeying the requirements of the Act. If in law the two votes cast by Arjun Prasad for these two creditor companies were not validly cast the three-fourths majority requisite under S.153, sub-s. (2) would not be there and so no further action under S. l53 could be taken by the Court in the matter. How can the Court turn a blind eye to the fact, if proved, that on the basis of valid votes at the meeting the requisite majority was not obtained, merely because the Chairmans attention was not drawn to the defect or it was not brought to the Courts notice earlierIn our opinion, the learned Judges who heard the appeal were right in thinking that however deplorable the delay by opposing creditors in raising the objection might be, that would not be a sufficient reason for refusing to entertain the objectionIt appears to us that unless there is some special provision by a law, a company which is not a physical person cannot "be present" at any place "in person". It is true that under the General Clauses Act, 1897, a company is a "person", so that whenever the word "person" is used in any statute a company would be included thereunder. The definition, in the General Clauses Act can however be of no assistance in interpreting the words "to be present in person", and the difficulty in the way of a company being present in person can be obviated only by statutory provisions of rules having the force of lawIt is unnecessary for us to consider whether under this new provision the attendance of a person authorised in this manner at a meeting of the creditors will amount to attendance of the creditor company "in person." For, the present case is governed by the provisions of the Indian companies Act, 1913 and not by this new provisionsAdmittedly, no proxy in accordance with Rule 150 was given by the two creditor companies, Bhandani Brothers and the Hindustan Coal Company, in the present case. There is nothing in these rules which can assist Mr. Sastris argument that a resolution by the directors of the company authorising a director or some other person to represent the company at the creditors meeting makes him "present in person" in law for that company at the meeting,As we have already indicated it does not appear to us that in the Act of 1913 there is any provision for attendance of the company "in person", but apart from that we wish to point out that the resolution made by the two companies do not appear to us to delegate the powers of the directors to Arjun Prasad13. The conclusion of the High Court that the votes cast by Arjun Prasad on behalf of the two companies, viz. Bhandani Brothers and the Hindustan Coal Company, were not valid votes is, in our opinion, correct.
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State of Andhra Pradesh Vs. B. Eswaraiah | 1. The respondent was convicted under Section 161, IPC and Section 5(1) (d) read with Section 5(2) of the Prevention of Corruption Act. The facts have been narrated in the judgments of the High Court and Sessions Court. After going through the judgment of the courts below we are satisfied that the High Court was absolutely wrong in acquitting the accused in the face of independent and disinterested evidence produced by the prosecution in support of its case. The only point taken by Mr. A. Subba Rao, learned counsel for the respondent is that money and ornaments were planted in order to implicate the respondent which was disbelieved by the High Court. The High Court has not disbelieved the evidence of the Deputy Superintendent of Police and other panch witnesses. The story of the accused that the money was given to the servant along with ornaments and was recovered from the almirah seems to be too good to be true. It is too much to think that the accused had the evidence shows that the accused pretended that the keys were in the police station. In the circumstances we are satisfied that the accused has failed to prove the defence taken by him and in view of the overwhelming evidence adduced by the prosecution, of PW 1, PW 14 and panch witnesses including Deputy Collector, it was clearly proved beyond reasonable doubt that there was a demand for a bribe and the bribe was received. We are, therefore, unable to support the judgment of the High Court which is in our opinion manifestly unreasonable. | 1[ds]The High Court has not disbelieved the evidence of the Deputy Superintendent of Police and other panch witnesses. The story of the accused that the money was given to the servant along with ornaments and was recovered from the almirah seems to be too good to be true. It is too much to think that the accused had the evidence shows that the accused pretended that the keys were in the police station. In the circumstances we are satisfied that the accused has failed to prove the defence taken by him and in view of the overwhelming evidence adduced by the prosecution, of PW 1, PW 14 and panch witnesses including Deputy Collector, it was clearly proved beyond reasonable doubt that there was a demand for a bribe and the bribe was received. We are, therefore, unable to support the judgment of the High Court which is in our opinion manifestlyappears that the case started as far back as 1964, that is to say, 18 years ago and it will really be not proper to send this appellant to jail for a long period at this stage. Nevertheless as the evidence against the respondent has been proved beyond reasonable doubt, he cannot, escape punishment. | 1 | 289 | 224 | ### 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:
1. The respondent was convicted under Section 161, IPC and Section 5(1) (d) read with Section 5(2) of the Prevention of Corruption Act. The facts have been narrated in the judgments of the High Court and Sessions Court. After going through the judgment of the courts below we are satisfied that the High Court was absolutely wrong in acquitting the accused in the face of independent and disinterested evidence produced by the prosecution in support of its case. The only point taken by Mr. A. Subba Rao, learned counsel for the respondent is that money and ornaments were planted in order to implicate the respondent which was disbelieved by the High Court. The High Court has not disbelieved the evidence of the Deputy Superintendent of Police and other panch witnesses. The story of the accused that the money was given to the servant along with ornaments and was recovered from the almirah seems to be too good to be true. It is too much to think that the accused had the evidence shows that the accused pretended that the keys were in the police station. In the circumstances we are satisfied that the accused has failed to prove the defence taken by him and in view of the overwhelming evidence adduced by the prosecution, of PW 1, PW 14 and panch witnesses including Deputy Collector, it was clearly proved beyond reasonable doubt that there was a demand for a bribe and the bribe was received. We are, therefore, unable to support the judgment of the High Court which is in our opinion manifestly unreasonable.
### Response:
1
### Explanation:
The High Court has not disbelieved the evidence of the Deputy Superintendent of Police and other panch witnesses. The story of the accused that the money was given to the servant along with ornaments and was recovered from the almirah seems to be too good to be true. It is too much to think that the accused had the evidence shows that the accused pretended that the keys were in the police station. In the circumstances we are satisfied that the accused has failed to prove the defence taken by him and in view of the overwhelming evidence adduced by the prosecution, of PW 1, PW 14 and panch witnesses including Deputy Collector, it was clearly proved beyond reasonable doubt that there was a demand for a bribe and the bribe was received. We are, therefore, unable to support the judgment of the High Court which is in our opinion manifestlyappears that the case started as far back as 1964, that is to say, 18 years ago and it will really be not proper to send this appellant to jail for a long period at this stage. Nevertheless as the evidence against the respondent has been proved beyond reasonable doubt, he cannot, escape punishment.
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C0Mmnr. Of Income Tax, New Delhi Vs. Oriental Fire & General Insurance Co.Ltd | is charged is what is left after you have paid all the necessary expenses to earn that profit. Profit is a plain English word; that is 2 what is charged with income tax. But if you confound what is the necessary expenditure to earn that profit with the income tax, which is a part of the profit itself, one can understand how you get into the confusion which has induced the learned counsel at such very considerable length to point out that this is not a charge upon the profits at all. The answer is that it is. the income tax is a charge upon the profits; the thing which is taxed is the profit that is made, and you must ascertain what is the profit that is made before you deduct the tax you have no right to deduct the income tax before you ascertain what the profit is. I cannot understand how you can made the income tax part of the expenditure" 24. Yet again in Allen (H.M. Inspector of Taxes) v. Farquharson Brothers and Company [XVII Tax Cases 54], it was held : "Now it is not necessary for me to discuss, and I do not need to discuss, in detail or, indeed, at all, although my attention was properly called to it by counsel, the exact nature of the Income Tax and its distinction from Excess Profits Duty. The distinction, of course, is perfectly familiar and, in a general way, is recollected by anybody who has ever had anything to do with these things. Income Tax is not a deduction before you arrive at the profits; it is a part of the profits. It is, as has been expressed by some well-known person I cannot remember who, but it does not matter the Crowns share of the profits. Excess Profits Duty was quite a different sort of thing. That was a deduction, the sum to be deducted before you arrived at the profits for the purpose of computation, with the result that you deducted the Excess Profits Duty in arriving at the computation and then if, as sometimes happened, later on, some Excess Profits Duty was got back, that Excess Profits Duty had to be brought in." 25. The said principle has been applied by this Court in Bharat Commerce & Industries Ltd. v. Commissioner of Income Tax, Central-II [(1998) 3 SCC 510] , stating : "6. The expenses in that case were incurred for a very different purpose from the purpose for which the assessee has paid interest in the present case. When interest is paid for committing a default in respect of a statutory liability to pay advance tax, the amount paid and the expenditure incurred in that connection is in no way connected with preserving or promoting the business of the assessee. This is not expenditure which is incurred and which has to be taken into account before the profits of the business are calculated. The liability in the case of payment of income tax and interest for delayed payment of income tax or advance tax arises on the computation of the profits and gains of business. The tax which is payable is on the assessees income after the income is determined. This cannot, therefore, be considered as an expenditure for the purpose of earning any income or profits. The ratio of Birla Cotton Mills case is not applicable in the present case." 26. It is, therefore, evident that the provision of income tax being not an expenditure, the Assessing Officer could not have exercised its jurisdiction in relation thereto. 27. Reliance has been placed by the learned Additional Solicitor General on Madras Motor & General Insurance Co. Ltd. v. Commissioner of Income Tax, Madras [1979 (117) ITR 534]. In the said decision also, the Madras High Court categorically held that the provision for payment of income-tax is a liability and not an expenditure. The question again came up for consideration recently in General Insurance Corporation of India v. Commissioner of Income Tax, Bombay [(1999) 8 SCC 60] wherein this Court rejected the contention of the learned counsel for the assessee therein, in the fact situation obtaining in that case, opining : "19. There is another approach to the same issue. Section 44 of the Income Tax Act read with the rules contained in the First Schedule to the Act lays down an artificial mode of computing the profits and gains of insurance business. For the purpose of income tax, the figures in the accounts of the assessee drawn up in accordance with the provisions of the First Schedule to the Income Tax Act and satisfying the requirements of the Insurance Act are binding on the assessing officer under the Income Tax Act and he has no general power to correct the errors in the accounts of an insurance business and undo the entries made therein." 28. Section 40(a)(ii) of the 1961 Act, it will bear repetition to state, provides for a non-obstante clause. It is of wide magnitude. Sections 32 to 38 of the 1961 Act refer to expenditure admissible under the Act. Section 40, however, seeks to make an exception thereto stating that some expenditures would not be allowed. Section 40(a)(ii), however, does not say that the income-tax would be an expenditure. It does not provide as to how a total income of a person should be computed. It provides for other types of taxes. The said provision has, therefore, no application in the instant case. 29. So far as the question of bad and doubtful claims is concerned, again the same is not an expenditure. Section 36(1)(vii) of the Act whereupon the learned Additional Solicitor General placed strong reliance, cannot be said to have any application whatsoever in the instant case. It is not relevant for computing the profit under the 1961 Act. In any event, Section 44 of the Act provides for a non -obstante clause and, thus, would prevail over the former. 30. For the reasons aforementioned, we | 0[ds]Section 40(a)(ii) of the 1961 Act, it will bear repetition to state, provides for a non-obstante clause. It is of wide magnitude. Sections 32 to 38 of the 1961 Act refer to expenditure admissible under the Act. Section 40, however, seeks to make an exception thereto stating that some expenditures would not be allowed. Section 40(a)(ii), however, does not say that the income-tax would be an expenditure. It does not provide as to how a total income of a person should be computed. It provides for other types of taxes. The said provision has, therefore, no application in the instant case. | 0 | 4,013 | 133 | ### 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:
is charged is what is left after you have paid all the necessary expenses to earn that profit. Profit is a plain English word; that is 2 what is charged with income tax. But if you confound what is the necessary expenditure to earn that profit with the income tax, which is a part of the profit itself, one can understand how you get into the confusion which has induced the learned counsel at such very considerable length to point out that this is not a charge upon the profits at all. The answer is that it is. the income tax is a charge upon the profits; the thing which is taxed is the profit that is made, and you must ascertain what is the profit that is made before you deduct the tax you have no right to deduct the income tax before you ascertain what the profit is. I cannot understand how you can made the income tax part of the expenditure" 24. Yet again in Allen (H.M. Inspector of Taxes) v. Farquharson Brothers and Company [XVII Tax Cases 54], it was held : "Now it is not necessary for me to discuss, and I do not need to discuss, in detail or, indeed, at all, although my attention was properly called to it by counsel, the exact nature of the Income Tax and its distinction from Excess Profits Duty. The distinction, of course, is perfectly familiar and, in a general way, is recollected by anybody who has ever had anything to do with these things. Income Tax is not a deduction before you arrive at the profits; it is a part of the profits. It is, as has been expressed by some well-known person I cannot remember who, but it does not matter the Crowns share of the profits. Excess Profits Duty was quite a different sort of thing. That was a deduction, the sum to be deducted before you arrived at the profits for the purpose of computation, with the result that you deducted the Excess Profits Duty in arriving at the computation and then if, as sometimes happened, later on, some Excess Profits Duty was got back, that Excess Profits Duty had to be brought in." 25. The said principle has been applied by this Court in Bharat Commerce & Industries Ltd. v. Commissioner of Income Tax, Central-II [(1998) 3 SCC 510] , stating : "6. The expenses in that case were incurred for a very different purpose from the purpose for which the assessee has paid interest in the present case. When interest is paid for committing a default in respect of a statutory liability to pay advance tax, the amount paid and the expenditure incurred in that connection is in no way connected with preserving or promoting the business of the assessee. This is not expenditure which is incurred and which has to be taken into account before the profits of the business are calculated. The liability in the case of payment of income tax and interest for delayed payment of income tax or advance tax arises on the computation of the profits and gains of business. The tax which is payable is on the assessees income after the income is determined. This cannot, therefore, be considered as an expenditure for the purpose of earning any income or profits. The ratio of Birla Cotton Mills case is not applicable in the present case." 26. It is, therefore, evident that the provision of income tax being not an expenditure, the Assessing Officer could not have exercised its jurisdiction in relation thereto. 27. Reliance has been placed by the learned Additional Solicitor General on Madras Motor & General Insurance Co. Ltd. v. Commissioner of Income Tax, Madras [1979 (117) ITR 534]. In the said decision also, the Madras High Court categorically held that the provision for payment of income-tax is a liability and not an expenditure. The question again came up for consideration recently in General Insurance Corporation of India v. Commissioner of Income Tax, Bombay [(1999) 8 SCC 60] wherein this Court rejected the contention of the learned counsel for the assessee therein, in the fact situation obtaining in that case, opining : "19. There is another approach to the same issue. Section 44 of the Income Tax Act read with the rules contained in the First Schedule to the Act lays down an artificial mode of computing the profits and gains of insurance business. For the purpose of income tax, the figures in the accounts of the assessee drawn up in accordance with the provisions of the First Schedule to the Income Tax Act and satisfying the requirements of the Insurance Act are binding on the assessing officer under the Income Tax Act and he has no general power to correct the errors in the accounts of an insurance business and undo the entries made therein." 28. Section 40(a)(ii) of the 1961 Act, it will bear repetition to state, provides for a non-obstante clause. It is of wide magnitude. Sections 32 to 38 of the 1961 Act refer to expenditure admissible under the Act. Section 40, however, seeks to make an exception thereto stating that some expenditures would not be allowed. Section 40(a)(ii), however, does not say that the income-tax would be an expenditure. It does not provide as to how a total income of a person should be computed. It provides for other types of taxes. The said provision has, therefore, no application in the instant case. 29. So far as the question of bad and doubtful claims is concerned, again the same is not an expenditure. Section 36(1)(vii) of the Act whereupon the learned Additional Solicitor General placed strong reliance, cannot be said to have any application whatsoever in the instant case. It is not relevant for computing the profit under the 1961 Act. In any event, Section 44 of the Act provides for a non -obstante clause and, thus, would prevail over the former. 30. For the reasons aforementioned, we
### Response:
0
### Explanation:
Section 40(a)(ii) of the 1961 Act, it will bear repetition to state, provides for a non-obstante clause. It is of wide magnitude. Sections 32 to 38 of the 1961 Act refer to expenditure admissible under the Act. Section 40, however, seeks to make an exception thereto stating that some expenditures would not be allowed. Section 40(a)(ii), however, does not say that the income-tax would be an expenditure. It does not provide as to how a total income of a person should be computed. It provides for other types of taxes. The said provision has, therefore, no application in the instant case.
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Sohan Pathak Vs. Commissioner OfIncome Tax, U.P | Tax Officer from considering the issue.It is now well settled that, for the purposes of the Act, a business is a unit of assessment, and the charging S. 4 provides for the tax being levied in respect of the profits of "any business to which this Act applies". Section 5 specifies the businesses to which the Act applies, and they are businesses of which any part of the profits made during the chargeable accounting period is chargeable to income-tax" by virtue of certain specified provisions of the Indian Income-tax Act, 1922. There are some provisos to this Section, one of which excludes the application of the Act to "any business the whole of the Profits of which accrue or arise in a Part B State."It is thus manifest that the Act can have no application to a business which did not make any profits during the relevant chargeable accounting period. In other words, if a business, having been discontinued, earned no profit during the chargeable accounting period in question, no excess profits tax can be charged in respect of such business, and that being the position here as respects the old joint family business in Banaras brocade, the appellants are not liable to be taxed as a Hindu undivided family in respect of that business.8. But, argues the learned Attorney-General, that that result cannot follow by reason of S.10-A of the Act which runs as follows:10 A. Transactions designed to avoid or reduce liability to excess profits tax.-(1) Where the Excess Profits Tax officer is of the opinion that the main purpose for which any transaction or transactions was or were effected (whether before or after the passing of the Excess Profits Tax(Second Amendment) Act, 1941) was the avoidance or reduction of liability to excess profits tax, he may, with the previous approval of the Inspecting Assistant Commissioner, make such adjustments as respects liability to excess profits tax as he considers appropriate so as to counteract the avoidance or reduction of liability to excess profits tax which would otherwise be effected by the transaction or transactions.* * *This provision, it is claimed, empowers the Excess Profits Tax Officer to ignore any transaction (s) the main purpose of which was the avoidance or reduction of liability to excess profits tax and to proceed on the footing that such transaction(s) had not been effected, and, in the present case, the partial partition as well as the subsequent formation of the partnerships having been found to be transactions the main purpose of which was the avoidance or reduction of liability to excess profits tax, the Officer had authority to assess the appellants old family business in Banaras brocade on the basis of its continued existence during the relevant chargeable accounting periods We are unable to accept this contention.9. If, under S. 4 of the Act read with S. 5, the old joint family business cannot be regarded as one "to which this Act applies, S. 10-A, one of the provisions of the Act can have no application to such business. The learned Attorney-Generals argument that Ss. 4 and 5 must be read along with S. 10-A in determining whether the Act applies to any particular business or not involves the fallacy that, in determining the initial issue whether the Act does or does not apply to a given business, you have to look not merely at the provision which defines the scope and application of the Act but other provisions also which presuppose its application. We are of opinion that the issue whether the Act applies or not to a particular business must be determined solely with reference to S. 5, and S. 10-A must be construed as applicable only to cases where, the business being found to be one to which the Act applies, a transaction of the kind referred to in the Section has been effected.The learned Attorney-General conceded that, if a person who had been paying excess profits tax transferred the business to a Part B State, it would not be competent for the Excess Profits Tax Officer to take action under S. 19-A to make adjustments on the footing that the assessee continued to carry on his business in the same place as before such transfer, even if it was found that the transfer was effected for the main purpose of avoiding or reducing his liability to excess profits tax. In that case, the Attorney-General admitted, the Officer would be running counter to the express prohibition contained in the proviso to S. 5 to which reference has been made and he did not challenge the correctness of a decision to that effect by the Bombay High Court. (Commissioner of Excess Profits Tax, Bombay City v. Moholal Manganlal, AIR 1953 Bom 230 (A) ).But we fail to appreciate the distinction in principle between that case and the present, for, to both alike the Act is made inapplicable by S. 5.The reasoning of the learned Judges in the Bombay case, namely, that if the Act is inapplicable to a particular business and there would thus be no liability to excess profits tax in respect of that business, no question could arise of avoiding or reducing any "ability to excess profits tax under S. 10-A, would equally apply to the present case and must lead to the same result.10. Reference was made by the Attorney-General in the course of his argument to the proviso to S. 2(5) which says that "all businesses to which this Act applies carried on by the same person shall be treated as one business for the purposes of this Act". We find it difficult to appreciate the bearing of this Section on the point at issue. It is clear that the proviso can operate in respect of businesses to which the Act applies and not otherwise, and it carries the matter no further.11. In the view we have expressed above, it is unnecessary to deal with the alternative contention based on S. 8 (1) of the Act. | 1[ds]the present case, the partial partition as well as the subsequent formation of the partnerships having been found to be transactions the main purpose of which was the avoidance or reduction of liability to excess profits tax, the Officer had authority to assess the appellants old family business in Banaras brocade on the basis of its continued existence during the relevant chargeable accounting periods We are unable to accept this contention.9. If, under S. 4 of the Act read with S. 5, the old joint family business cannot be regarded as one "to which this Act applies, S. 10-A, one of the provisions of the Act can have no application to such business. The learned Attorney-Generals argument that Ss. 4 and 5 must be read along with S. 10-A in determining whether the Act applies to any particular business or not involves the fallacy that, in determining the initial issue whether the Act does or does not apply to a given business, you have to look not merely at the provision which defines the scope and application of the Act but other provisions also which presuppose its application. We are of opinion that the issue whether the Act applies or not to a particular business must be determined solely with reference to S. 5, and S. 10-A must be construed as applicable only to cases where, the business being found to be one to which the Act applies, a transaction of the kind referred to in the Section has been effected.The learned Attorney-General conceded that, if a person who had been paying excess profits tax transferred the business to a Part B State, it would not be competent for the Excess Profits Tax Officer to take action under S. 19-A to make adjustments on the footing that the assessee continued to carry on his business in the same place as before such transfer, even if it was found that the transfer was effected for the main purpose of avoiding or reducing his liability to excess profits tax. In that case, the Attorney-General admitted, the Officer would be running counter to the express prohibition contained in the proviso to S. 5 to which reference has been made and he did not challenge the correctness of a decision to that effect by the Bombay High Court. (Commissioner of Excess Profits Tax, Bombay City v. Moholal Manganlal, AIR 1953 Bom 230 (A) ).But we fail to appreciate the distinction in principle between that case and the present, for, to both alike the Act is made inapplicable by S. 5.The reasoning of the learned Judges in the Bombay case, namely, that if the Act is inapplicable to a particular business and there would thus be no liability to excess profits tax in respect of that business, no question could arise of avoiding or reducing any "ability to excess profits tax under S. 10-A, would equally apply to the present case and must lead to the same result.Reference was made by the Attorney-General in the course of his argument to the proviso to S. 2(5) which says that "all businesses to which this Act applies carried on by the same person shall be treated as one business for the purposes of this Act". We find it difficult to appreciate the bearing of this Section on the point at issue. It is clear that the proviso can operate in respect of businesses to which the Act applies and not otherwise, and it carries the matter no further.11. In the view we have expressed above, it is unnecessary to deal with the alternative contention based on S. 8 (1) of the Act. | 1 | 2,883 | 659 | ### 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:
Tax Officer from considering the issue.It is now well settled that, for the purposes of the Act, a business is a unit of assessment, and the charging S. 4 provides for the tax being levied in respect of the profits of "any business to which this Act applies". Section 5 specifies the businesses to which the Act applies, and they are businesses of which any part of the profits made during the chargeable accounting period is chargeable to income-tax" by virtue of certain specified provisions of the Indian Income-tax Act, 1922. There are some provisos to this Section, one of which excludes the application of the Act to "any business the whole of the Profits of which accrue or arise in a Part B State."It is thus manifest that the Act can have no application to a business which did not make any profits during the relevant chargeable accounting period. In other words, if a business, having been discontinued, earned no profit during the chargeable accounting period in question, no excess profits tax can be charged in respect of such business, and that being the position here as respects the old joint family business in Banaras brocade, the appellants are not liable to be taxed as a Hindu undivided family in respect of that business.8. But, argues the learned Attorney-General, that that result cannot follow by reason of S.10-A of the Act which runs as follows:10 A. Transactions designed to avoid or reduce liability to excess profits tax.-(1) Where the Excess Profits Tax officer is of the opinion that the main purpose for which any transaction or transactions was or were effected (whether before or after the passing of the Excess Profits Tax(Second Amendment) Act, 1941) was the avoidance or reduction of liability to excess profits tax, he may, with the previous approval of the Inspecting Assistant Commissioner, make such adjustments as respects liability to excess profits tax as he considers appropriate so as to counteract the avoidance or reduction of liability to excess profits tax which would otherwise be effected by the transaction or transactions.* * *This provision, it is claimed, empowers the Excess Profits Tax Officer to ignore any transaction (s) the main purpose of which was the avoidance or reduction of liability to excess profits tax and to proceed on the footing that such transaction(s) had not been effected, and, in the present case, the partial partition as well as the subsequent formation of the partnerships having been found to be transactions the main purpose of which was the avoidance or reduction of liability to excess profits tax, the Officer had authority to assess the appellants old family business in Banaras brocade on the basis of its continued existence during the relevant chargeable accounting periods We are unable to accept this contention.9. If, under S. 4 of the Act read with S. 5, the old joint family business cannot be regarded as one "to which this Act applies, S. 10-A, one of the provisions of the Act can have no application to such business. The learned Attorney-Generals argument that Ss. 4 and 5 must be read along with S. 10-A in determining whether the Act applies to any particular business or not involves the fallacy that, in determining the initial issue whether the Act does or does not apply to a given business, you have to look not merely at the provision which defines the scope and application of the Act but other provisions also which presuppose its application. We are of opinion that the issue whether the Act applies or not to a particular business must be determined solely with reference to S. 5, and S. 10-A must be construed as applicable only to cases where, the business being found to be one to which the Act applies, a transaction of the kind referred to in the Section has been effected.The learned Attorney-General conceded that, if a person who had been paying excess profits tax transferred the business to a Part B State, it would not be competent for the Excess Profits Tax Officer to take action under S. 19-A to make adjustments on the footing that the assessee continued to carry on his business in the same place as before such transfer, even if it was found that the transfer was effected for the main purpose of avoiding or reducing his liability to excess profits tax. In that case, the Attorney-General admitted, the Officer would be running counter to the express prohibition contained in the proviso to S. 5 to which reference has been made and he did not challenge the correctness of a decision to that effect by the Bombay High Court. (Commissioner of Excess Profits Tax, Bombay City v. Moholal Manganlal, AIR 1953 Bom 230 (A) ).But we fail to appreciate the distinction in principle between that case and the present, for, to both alike the Act is made inapplicable by S. 5.The reasoning of the learned Judges in the Bombay case, namely, that if the Act is inapplicable to a particular business and there would thus be no liability to excess profits tax in respect of that business, no question could arise of avoiding or reducing any "ability to excess profits tax under S. 10-A, would equally apply to the present case and must lead to the same result.10. Reference was made by the Attorney-General in the course of his argument to the proviso to S. 2(5) which says that "all businesses to which this Act applies carried on by the same person shall be treated as one business for the purposes of this Act". We find it difficult to appreciate the bearing of this Section on the point at issue. It is clear that the proviso can operate in respect of businesses to which the Act applies and not otherwise, and it carries the matter no further.11. In the view we have expressed above, it is unnecessary to deal with the alternative contention based on S. 8 (1) of the Act.
### Response:
1
### Explanation:
the present case, the partial partition as well as the subsequent formation of the partnerships having been found to be transactions the main purpose of which was the avoidance or reduction of liability to excess profits tax, the Officer had authority to assess the appellants old family business in Banaras brocade on the basis of its continued existence during the relevant chargeable accounting periods We are unable to accept this contention.9. If, under S. 4 of the Act read with S. 5, the old joint family business cannot be regarded as one "to which this Act applies, S. 10-A, one of the provisions of the Act can have no application to such business. The learned Attorney-Generals argument that Ss. 4 and 5 must be read along with S. 10-A in determining whether the Act applies to any particular business or not involves the fallacy that, in determining the initial issue whether the Act does or does not apply to a given business, you have to look not merely at the provision which defines the scope and application of the Act but other provisions also which presuppose its application. We are of opinion that the issue whether the Act applies or not to a particular business must be determined solely with reference to S. 5, and S. 10-A must be construed as applicable only to cases where, the business being found to be one to which the Act applies, a transaction of the kind referred to in the Section has been effected.The learned Attorney-General conceded that, if a person who had been paying excess profits tax transferred the business to a Part B State, it would not be competent for the Excess Profits Tax Officer to take action under S. 19-A to make adjustments on the footing that the assessee continued to carry on his business in the same place as before such transfer, even if it was found that the transfer was effected for the main purpose of avoiding or reducing his liability to excess profits tax. In that case, the Attorney-General admitted, the Officer would be running counter to the express prohibition contained in the proviso to S. 5 to which reference has been made and he did not challenge the correctness of a decision to that effect by the Bombay High Court. (Commissioner of Excess Profits Tax, Bombay City v. Moholal Manganlal, AIR 1953 Bom 230 (A) ).But we fail to appreciate the distinction in principle between that case and the present, for, to both alike the Act is made inapplicable by S. 5.The reasoning of the learned Judges in the Bombay case, namely, that if the Act is inapplicable to a particular business and there would thus be no liability to excess profits tax in respect of that business, no question could arise of avoiding or reducing any "ability to excess profits tax under S. 10-A, would equally apply to the present case and must lead to the same result.Reference was made by the Attorney-General in the course of his argument to the proviso to S. 2(5) which says that "all businesses to which this Act applies carried on by the same person shall be treated as one business for the purposes of this Act". We find it difficult to appreciate the bearing of this Section on the point at issue. It is clear that the proviso can operate in respect of businesses to which the Act applies and not otherwise, and it carries the matter no further.11. In the view we have expressed above, it is unnecessary to deal with the alternative contention based on S. 8 (1) of the Act.
|
Kamgaranchao Ekvott Vs. Mumbai Mazdoor Sabha & Others | are in respect of the same charter of demands which were served but Kamgar Sabha on the employer and which demands are the subject matter of the present reference as can be seen from the reply filed by the company Ciba Speciality Chemicals (India) Ltd., as well as the settlement dated 30th August 2000 produced by the said company. It is clearly mentioned in the said settlement that the said settlement is in respect of the demands raised by the workmen through Kamgar Sabha vide letters dated 11.5.93, 7.6.95 and 26.6.95 and the said demands are the subject matter of the present dispute. Since the settlement is in respect of the demands already raised by the workmen earlier through Kamgar Sabha and which is the subject matter of the present dispute the judgment of the Himachal Pradesh High Court in the case of Village Papers Pvt. Ltd. (supra) relied upon by Adv. Shri Shaikh the learned counsel for the Kamgar Sabha that there is no industrial dispute because there is no demand on the employer has no application. In my view the judgment of the Bombay High Court in the case of V.V.F. Employees Union is not applicable mainly for the reason that in that case separate demands were raised by the two unions against the employer and a settlement was signed by the employer with the one union in respect o the demand raised by it and that union wanted to be impleaded as a party to the dispute which was referred to the Tribunal in respect of the demands of the other union which were not settled. The High Court held that since the demands of the union who wanted to be impleaded as party were settled it has no legitimate right to be impleaded as a party to the dispute. It is therefore evident that the facts in the case before the Bombay High Court were different from the one in the present case, as the settlements signed by the applicant union are on behalf of the workmen not in respect of its any separate charter of demands but they are in respect of the same demand which were raised by the workmen through Kamgar Sabha. 17. The Tribunal then stated;I have gone through the settlement dated 30th August, 2000 produced by the Company Ciba Speciality Chemicals (India) Ltd., which is signed by the said company with applicant Union. Clause 30.2 (sic 35.2) of the said settlement states that the parties are entitled to approach this Tribunal in this reference for Award in terms of the said settlements. The said settlement is entered into by the majority of the workmen through the applicant union and therefore the said settlement has direct bearing on the dispute in the present case. Whether the settlement is valid and binding or whether award can be passed in terms of the settlement are the matters incidental to the main issue which is the charter of demands and in respect of which according to the applicant union the said settlements have been arrived at. These issues cannot be decided in the absence of the workmen who are represented by the applicant union. I may mention here that it is within the right of the parties in the reference to settle their disputes by entering into settlements and it is the duty of the Tribunal to ascertain whether the settlement is reasonable or not. This cannot be done unless the parties are given; the opportunity of being heard. It is therefore necessary that the workmen who have resigned from the Kamgar Sabha be allowed to be represented by their union which is the applicant union in the present case. In view of what is discussed above, I am of the view that the applicant union is a necessary party to the present dispute/reference and it is required to be impleaded so as to make the adjudication effective and enforceable. I, therefore hold that the applicant union has made out a case for adding it as a party to the present dispute/reference and hence the applications dated 11.9.2000 and 29.9.2000 filed by it are liable to be allowed . (Emphasis supplied)There is no doubt in our minds that it is the duty of the Tribunal to ascertain whether the settlement arrived at between the appellant union and the company is just and reasonable and it cannot be decided unless the appellant union is afforded an opportunity to have its say. The prayer of the appellant union to be joined as party, hence, could not be rejected.18. The learned Single Judge, in our opinion, was not right in interfering with the discretionary order passed by the Industrial Tribunal. Though conscious of the fact that normally the High Court should not interfere with such order and though the learned Single Judge observed in the order that while deciding Reference IT/38/95, the Tribunal has to consider whether the settlement arrived at by the appellant union with the Company was just, fair and reasonable, he held that the presence of the appellant union for that purpose was not necessary. In the opinion of the learned single Judge, whether the settlement was just, fair and reasonable or not could be decided even in absence of the appellant union and necessary witnesses can be examined. In our opinion, however, when that question is required to be decided in Reference IT/38/95 and when Clause 35.2 made it clear that the settlement excluded demand pertaining to permanency of temporary workmen which is subject matter of Reference IT/38/95, the learned Single Judge ought not to have interfered with the order passed by the Tribunal.19. For the foregoing reasons, in our opinion, the order passed by the learned Single Judge deserves to be quashed and set aside and the order passed by the Industrial Tribunal deserves to be confirmed. The order passed by the learned Single Judge therefore, is hereby set aside and the order passed by the Industrial Tribunal, Goa at Panaji is restored. | 1[ds]From the above clause, it is clear that the management and the workmen agreed that the settlement was full and final excluding that the demand pertaining to the temporary workmen which is the subject matter of Reference IT/38/95 which is pending. It is thus clear that the settlement which has been arrived at specifically refers to Reference IT/38/95. It also mentions a demand pertaining to temporary workmen which is the subject matter of Reference IT/38/95 which is pending. The industrial Tribunal, therefore, in our opinion, rightly relied upon decisions of the Supreme Court in Hochtier Gammon vs. Industrial Tribunal, Bhubaneshwar, Orissa,7 SCLJ 653 (SC) and Tata Engineering and Locomotive Co. Ltd. vs. Workmen, (1981) II LLJ 429 (SC). To us, the Tribunal was also right in distinguishing a decision of this Court in V.V.F. Employees Union vs. S.M. LimayeOthers, (1990) I CLR 359 (Bom). In V.V.F. Employees Union, as rightly observed by the Tribunal, there were two disputes and two references. The workmen represented by one union settled its dispute in respect of demands made by it covered by the settlement and the dispute thus came to an end. So far as the other union was concerned, certain demands were raised which did not result into a settlement. Obviously, therefore, the first union which had settled its dispute was neither necessary nor proper party to the second dispute which was raised by another union. This Court also observed that there was no dispute in existence so far as the first union was concerned, in view of settlement arrived at between the parties. The dispute raised by another union was totally different, distinct and independent. The said dispute concerned the members of the other union and the union which had settled the matter had no interest therein. A prayer by that union to be joined as party in respect of demands made and dispute raised by the second union, therefore, was totally8. The learned Single Judge, in our opinion, was not right in interfering with the discretionary order passed by the Industrial Tribunal. Though conscious of the fact that normally the High Court should not interfere with such order and though the learned Single Judge observed in the order that while deciding Reference IT/38/95, the Tribunal has to consider whether the settlement arrived at by the appellant union with the Company was just, fair and reasonable, he held that the presence of the appellant union for that purpose was not necessary. In the opinion of the learned single Judge, whether the settlement was just, fair and reasonable or not could be decided even in absence of the appellant union and necessary witnesses can be examined. In our opinion, however, when that question is required to be decided in Reference IT/38/95 and when Clause 35.2 made it clear that the settlement excluded demand pertaining to permanency of temporary workmen which is subject matter of Reference IT/38/95, the learned Single Judge ought not to have interfered with the order passed by the Tribunal.19. For the foregoing reasons, in our opinion, the order passed by the learned Single Judge deserves to be quashed and set aside and the order passed by the Industrial Tribunal deserves to be confirmed. The order passed by the learned Single Judge therefore, is hereby set aside and the order passed by the Industrial Tribunal, Goa at Panaji is restored. | 1 | 3,593 | 628 | ### 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:
are in respect of the same charter of demands which were served but Kamgar Sabha on the employer and which demands are the subject matter of the present reference as can be seen from the reply filed by the company Ciba Speciality Chemicals (India) Ltd., as well as the settlement dated 30th August 2000 produced by the said company. It is clearly mentioned in the said settlement that the said settlement is in respect of the demands raised by the workmen through Kamgar Sabha vide letters dated 11.5.93, 7.6.95 and 26.6.95 and the said demands are the subject matter of the present dispute. Since the settlement is in respect of the demands already raised by the workmen earlier through Kamgar Sabha and which is the subject matter of the present dispute the judgment of the Himachal Pradesh High Court in the case of Village Papers Pvt. Ltd. (supra) relied upon by Adv. Shri Shaikh the learned counsel for the Kamgar Sabha that there is no industrial dispute because there is no demand on the employer has no application. In my view the judgment of the Bombay High Court in the case of V.V.F. Employees Union is not applicable mainly for the reason that in that case separate demands were raised by the two unions against the employer and a settlement was signed by the employer with the one union in respect o the demand raised by it and that union wanted to be impleaded as a party to the dispute which was referred to the Tribunal in respect of the demands of the other union which were not settled. The High Court held that since the demands of the union who wanted to be impleaded as party were settled it has no legitimate right to be impleaded as a party to the dispute. It is therefore evident that the facts in the case before the Bombay High Court were different from the one in the present case, as the settlements signed by the applicant union are on behalf of the workmen not in respect of its any separate charter of demands but they are in respect of the same demand which were raised by the workmen through Kamgar Sabha. 17. The Tribunal then stated;I have gone through the settlement dated 30th August, 2000 produced by the Company Ciba Speciality Chemicals (India) Ltd., which is signed by the said company with applicant Union. Clause 30.2 (sic 35.2) of the said settlement states that the parties are entitled to approach this Tribunal in this reference for Award in terms of the said settlements. The said settlement is entered into by the majority of the workmen through the applicant union and therefore the said settlement has direct bearing on the dispute in the present case. Whether the settlement is valid and binding or whether award can be passed in terms of the settlement are the matters incidental to the main issue which is the charter of demands and in respect of which according to the applicant union the said settlements have been arrived at. These issues cannot be decided in the absence of the workmen who are represented by the applicant union. I may mention here that it is within the right of the parties in the reference to settle their disputes by entering into settlements and it is the duty of the Tribunal to ascertain whether the settlement is reasonable or not. This cannot be done unless the parties are given; the opportunity of being heard. It is therefore necessary that the workmen who have resigned from the Kamgar Sabha be allowed to be represented by their union which is the applicant union in the present case. In view of what is discussed above, I am of the view that the applicant union is a necessary party to the present dispute/reference and it is required to be impleaded so as to make the adjudication effective and enforceable. I, therefore hold that the applicant union has made out a case for adding it as a party to the present dispute/reference and hence the applications dated 11.9.2000 and 29.9.2000 filed by it are liable to be allowed . (Emphasis supplied)There is no doubt in our minds that it is the duty of the Tribunal to ascertain whether the settlement arrived at between the appellant union and the company is just and reasonable and it cannot be decided unless the appellant union is afforded an opportunity to have its say. The prayer of the appellant union to be joined as party, hence, could not be rejected.18. The learned Single Judge, in our opinion, was not right in interfering with the discretionary order passed by the Industrial Tribunal. Though conscious of the fact that normally the High Court should not interfere with such order and though the learned Single Judge observed in the order that while deciding Reference IT/38/95, the Tribunal has to consider whether the settlement arrived at by the appellant union with the Company was just, fair and reasonable, he held that the presence of the appellant union for that purpose was not necessary. In the opinion of the learned single Judge, whether the settlement was just, fair and reasonable or not could be decided even in absence of the appellant union and necessary witnesses can be examined. In our opinion, however, when that question is required to be decided in Reference IT/38/95 and when Clause 35.2 made it clear that the settlement excluded demand pertaining to permanency of temporary workmen which is subject matter of Reference IT/38/95, the learned Single Judge ought not to have interfered with the order passed by the Tribunal.19. For the foregoing reasons, in our opinion, the order passed by the learned Single Judge deserves to be quashed and set aside and the order passed by the Industrial Tribunal deserves to be confirmed. The order passed by the learned Single Judge therefore, is hereby set aside and the order passed by the Industrial Tribunal, Goa at Panaji is restored.
### Response:
1
### Explanation:
From the above clause, it is clear that the management and the workmen agreed that the settlement was full and final excluding that the demand pertaining to the temporary workmen which is the subject matter of Reference IT/38/95 which is pending. It is thus clear that the settlement which has been arrived at specifically refers to Reference IT/38/95. It also mentions a demand pertaining to temporary workmen which is the subject matter of Reference IT/38/95 which is pending. The industrial Tribunal, therefore, in our opinion, rightly relied upon decisions of the Supreme Court in Hochtier Gammon vs. Industrial Tribunal, Bhubaneshwar, Orissa,7 SCLJ 653 (SC) and Tata Engineering and Locomotive Co. Ltd. vs. Workmen, (1981) II LLJ 429 (SC). To us, the Tribunal was also right in distinguishing a decision of this Court in V.V.F. Employees Union vs. S.M. LimayeOthers, (1990) I CLR 359 (Bom). In V.V.F. Employees Union, as rightly observed by the Tribunal, there were two disputes and two references. The workmen represented by one union settled its dispute in respect of demands made by it covered by the settlement and the dispute thus came to an end. So far as the other union was concerned, certain demands were raised which did not result into a settlement. Obviously, therefore, the first union which had settled its dispute was neither necessary nor proper party to the second dispute which was raised by another union. This Court also observed that there was no dispute in existence so far as the first union was concerned, in view of settlement arrived at between the parties. The dispute raised by another union was totally different, distinct and independent. The said dispute concerned the members of the other union and the union which had settled the matter had no interest therein. A prayer by that union to be joined as party in respect of demands made and dispute raised by the second union, therefore, was totally8. The learned Single Judge, in our opinion, was not right in interfering with the discretionary order passed by the Industrial Tribunal. Though conscious of the fact that normally the High Court should not interfere with such order and though the learned Single Judge observed in the order that while deciding Reference IT/38/95, the Tribunal has to consider whether the settlement arrived at by the appellant union with the Company was just, fair and reasonable, he held that the presence of the appellant union for that purpose was not necessary. In the opinion of the learned single Judge, whether the settlement was just, fair and reasonable or not could be decided even in absence of the appellant union and necessary witnesses can be examined. In our opinion, however, when that question is required to be decided in Reference IT/38/95 and when Clause 35.2 made it clear that the settlement excluded demand pertaining to permanency of temporary workmen which is subject matter of Reference IT/38/95, the learned Single Judge ought not to have interfered with the order passed by the Tribunal.19. For the foregoing reasons, in our opinion, the order passed by the learned Single Judge deserves to be quashed and set aside and the order passed by the Industrial Tribunal deserves to be confirmed. The order passed by the learned Single Judge therefore, is hereby set aside and the order passed by the Industrial Tribunal, Goa at Panaji is restored.
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State of Himachal Pradesh and Ors Vs. Naval Kumar | became unconscious. On the same day, FIR was registered at the instance of the mother of the Respondent. 5. The Respondent was initially taken to Referral Hospital Chowari for treatment. Thereafter he was referred to Dr. Rajendra Prasad Medical Hospital, Tanda, District Kangra, Himachal Pradesh. He was operated on 25.03.2012 and his both arms were amputated. He was admitted in Dr. Rajendra Prasad Medical Hospital, Tanda w.e.f. 18.03.2012 to 03.05.2012. The Respondent suffered 100% disability. During the course of hospitalization, the family of the Respondent had to incur expenses exceeding Rs. 2,00,000/- including medicines, taxi charges, attendant charges, special diet charges etc. The Respondent has now become totally dependent upon family members even for day-to-day activities for his entire life. The Respondent was throughout brilliant student in his studies and had to discontinue his studies after this unfortunate incident. 6. The Respondent, through his mother and natural guardian, namely, Smt. Lata Devi, filed writ petition being W.P. No. 475 of 2013 in the High Court against the Appellants herein claiming a compensation of Rs. 50,00,000/- under various heads and also stated that they have incurred Rs. 2,00,000/- for medical expenses. The Respondent also prayed for a direction to the authorities to install and maintain all the electricity wires, conductors, apparatus etc. strictly in accordance with the Electricity Act, Rules, Regulations etc. so that no such untoward incident would take place in the future. 7. The High Court, by impugned judgment dated 09.01.2015, allowed the writ petition filed by the Respondent herein and awarded a compensation of Rs. 1,25,00,000/- under different heads to the Respondent. 8. Against the said judgment, the Appellants have filed this appeal by way of special leave before this Court. 9. Heard Mr. J.S. Attri, learned Senior Counsel for the Appellants and Mr. Nishant Ramakanrao Katneshwarkar, learned Counsel for the Respondent. 10. Learned Counsel for the Appellant-State of H.P. while assailing the legality and correctness of the impugned order urged that the High Court erred in awarding Rs. 1,25,00,000/- to the Respondent-claimant by way of compensation for the disabilities caused on account of electrocution suffered by the Respondent. It was his submission that the award of compensation by the High Court is on much higher side with no material evidence on record in support thereof and further it is essentially based on assumptions and presumptions, which is not legally sustainable in law. 11. Learned Counsel also contended that though the Respondent unfortunately lost his both the arms thereby suffered 100% permanent disability for his whole life at such young age, yet having regard to several relevant factors governing the issue, the compensation awarded by the High Court appears to be on higher side and, hence, it deserves to be reduced so as to make it a reasonable one. 12. In reply, learned Counsel for the Respondent supported the impugned order and contended that it does not call for any interference. According to learned Counsel, it is based on proper reasoning and being just and reasonable, therefore, does not call for any interference. 13. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find some force in the submissions urged by the learned Counsel for the Appellant-State and, hence, we are inclined to interfere in the impugned order and, in consequence, reduce the compensation awarded by the High Court to the extent indicated infra. 14. The short question that arises for consideration in this appeal is whether the High Court, in the facts and circumstances of the case, was justified in awarding Rs. 1,25,00,000/- to the Respondent by way of compensation for the injuries sustained by the Respondent in an accident which occurred on 18.03.2012? 15. The High Court held and, in our view, rightly that the incident in question occurred due to negligence of the State and its authorities and hence the State was vicariously liable to compensate the Respondent for the losses sustained by the Respondent. It may be mentioned that the State rightly did not challenge this finding and hence we need not go into its correctness. The High Court further held and, in our view, rightly that having regard to the family background of the Respondent and further Respondents excellent performance as a brilliant student in studies, he would have easily earned Rs. 30,000/- per month in his life. We find no good ground to interfere in this finding of fact, which, in our opinion, is based on proper material on record. 16. The High Court, however, further awarded Rs. 10,00,000/- towards loss of companionship, life amenities/pleasures, and happiness, Rs. 10,00,000/- for pain and suffering, mental distress, trauma and discomfort and inconvenience, Rs. 10,00,000/- towards attendant/nursing expenses, and lastly, Rs. 5,00,000/- for securing artificial/robotic limbs and future medical expenses. In our considered view, the award of compensation under these 4 heads appears to be on very higher side and is not supported by any evidence. It is, in our view, based on assumptions and presumptions to which we do not concur. In our view, entitlement under these heads is one thing and the quantum of grant of compensation under these heads is another thing. In this case, as rightly urged by the learned Counsel for the Appellant-State that lump sum award of compensation under these heads is on higher side and is not supported by any evidence. It is, therefore, not legally sustainable. 17. In our considered view, taking into consideration the facts and circumstances of the case such as Respondents family background, his age (8 years), nature of permanent disability suffered by the Respondent, his performance in studies, the determination of monthly/yearly income made by the High Court, expenses incurred and all the relevant factors, which are usually taken into account in awarding compensation to the victim, the Respondent is held entitled for a total lump sum compensation of Rs. 90,00,000/- (Rs. Ninety lacs) together with interest payable at the rate of 6% p.a. in place of Rs. 1,25,00,000/- awarded by the High Court. | 1[ds]13. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find some force in the submissions urged by the learned Counsel for the Appellant-State and, hence, we are inclined to interfere in the impugned order and, in consequence, reduce the compensation awarded by the High Court to the extent indicated infra15. The High Court held and, in our view, rightly that the incident in question occurred due to negligence of the State and its authorities and hence the State was vicariously liable to compensate the Respondent for the losses sustained by the Respondent. It may be mentioned that the State rightly did not challenge this finding and hence we need not go into its correctness. The High Court further held and, in our view, rightly that having regard to the family background of the Respondent and further Respondents excellent performance as a brilliant student in studies, he would have easily earned Rs. 30,000/- per month in his life. We find no good ground to interfere in this finding of fact, which, in our opinion, is based on proper material on record16. The High Court, however, further awarded Rs. 10,00,000/- towards loss of companionship, life amenities/pleasures, and happiness, Rs. 10,00,000/- for pain and suffering, mental distress, trauma and discomfort and inconvenience, Rs. 10,00,000/- towards attendant/nursing expenses, and lastly, Rs. 5,00,000/- for securing artificial/robotic limbs and future medical expenses. In our considered view, the award of compensation under these 4 heads appears to be on very higher side and is not supported by any evidence. It is, in our view, based on assumptions and presumptions to which we do not concur. In our view, entitlement under these heads is one thing and the quantum of grant of compensation under these heads is another thing. In this case, as rightly urged by the learned Counsel for the Appellant-State that lump sum award of compensation under these heads is on higher side and is not supported by any evidence. It is, therefore, not legally sustainable17. In our considered view, taking into consideration the facts and circumstances of the case such as Respondents family background, his age (8 years), nature of permanent disability suffered by the Respondent, his performance in studies, the determination of monthly/yearly income made by the High Court, expenses incurred and all the relevant factors, which are usually taken into account in awarding compensation to the victim, the Respondent is held entitled for a total lump sum compensation of Rs. 90,00,000/- (Rs. Ninety lacs) together with interest payable at the rate of 6% p.a. in place of Rs. 1,25,00,000/- awarded by the High Court. | 1 | 1,314 | 510 | ### 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:
became unconscious. On the same day, FIR was registered at the instance of the mother of the Respondent. 5. The Respondent was initially taken to Referral Hospital Chowari for treatment. Thereafter he was referred to Dr. Rajendra Prasad Medical Hospital, Tanda, District Kangra, Himachal Pradesh. He was operated on 25.03.2012 and his both arms were amputated. He was admitted in Dr. Rajendra Prasad Medical Hospital, Tanda w.e.f. 18.03.2012 to 03.05.2012. The Respondent suffered 100% disability. During the course of hospitalization, the family of the Respondent had to incur expenses exceeding Rs. 2,00,000/- including medicines, taxi charges, attendant charges, special diet charges etc. The Respondent has now become totally dependent upon family members even for day-to-day activities for his entire life. The Respondent was throughout brilliant student in his studies and had to discontinue his studies after this unfortunate incident. 6. The Respondent, through his mother and natural guardian, namely, Smt. Lata Devi, filed writ petition being W.P. No. 475 of 2013 in the High Court against the Appellants herein claiming a compensation of Rs. 50,00,000/- under various heads and also stated that they have incurred Rs. 2,00,000/- for medical expenses. The Respondent also prayed for a direction to the authorities to install and maintain all the electricity wires, conductors, apparatus etc. strictly in accordance with the Electricity Act, Rules, Regulations etc. so that no such untoward incident would take place in the future. 7. The High Court, by impugned judgment dated 09.01.2015, allowed the writ petition filed by the Respondent herein and awarded a compensation of Rs. 1,25,00,000/- under different heads to the Respondent. 8. Against the said judgment, the Appellants have filed this appeal by way of special leave before this Court. 9. Heard Mr. J.S. Attri, learned Senior Counsel for the Appellants and Mr. Nishant Ramakanrao Katneshwarkar, learned Counsel for the Respondent. 10. Learned Counsel for the Appellant-State of H.P. while assailing the legality and correctness of the impugned order urged that the High Court erred in awarding Rs. 1,25,00,000/- to the Respondent-claimant by way of compensation for the disabilities caused on account of electrocution suffered by the Respondent. It was his submission that the award of compensation by the High Court is on much higher side with no material evidence on record in support thereof and further it is essentially based on assumptions and presumptions, which is not legally sustainable in law. 11. Learned Counsel also contended that though the Respondent unfortunately lost his both the arms thereby suffered 100% permanent disability for his whole life at such young age, yet having regard to several relevant factors governing the issue, the compensation awarded by the High Court appears to be on higher side and, hence, it deserves to be reduced so as to make it a reasonable one. 12. In reply, learned Counsel for the Respondent supported the impugned order and contended that it does not call for any interference. According to learned Counsel, it is based on proper reasoning and being just and reasonable, therefore, does not call for any interference. 13. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find some force in the submissions urged by the learned Counsel for the Appellant-State and, hence, we are inclined to interfere in the impugned order and, in consequence, reduce the compensation awarded by the High Court to the extent indicated infra. 14. The short question that arises for consideration in this appeal is whether the High Court, in the facts and circumstances of the case, was justified in awarding Rs. 1,25,00,000/- to the Respondent by way of compensation for the injuries sustained by the Respondent in an accident which occurred on 18.03.2012? 15. The High Court held and, in our view, rightly that the incident in question occurred due to negligence of the State and its authorities and hence the State was vicariously liable to compensate the Respondent for the losses sustained by the Respondent. It may be mentioned that the State rightly did not challenge this finding and hence we need not go into its correctness. The High Court further held and, in our view, rightly that having regard to the family background of the Respondent and further Respondents excellent performance as a brilliant student in studies, he would have easily earned Rs. 30,000/- per month in his life. We find no good ground to interfere in this finding of fact, which, in our opinion, is based on proper material on record. 16. The High Court, however, further awarded Rs. 10,00,000/- towards loss of companionship, life amenities/pleasures, and happiness, Rs. 10,00,000/- for pain and suffering, mental distress, trauma and discomfort and inconvenience, Rs. 10,00,000/- towards attendant/nursing expenses, and lastly, Rs. 5,00,000/- for securing artificial/robotic limbs and future medical expenses. In our considered view, the award of compensation under these 4 heads appears to be on very higher side and is not supported by any evidence. It is, in our view, based on assumptions and presumptions to which we do not concur. In our view, entitlement under these heads is one thing and the quantum of grant of compensation under these heads is another thing. In this case, as rightly urged by the learned Counsel for the Appellant-State that lump sum award of compensation under these heads is on higher side and is not supported by any evidence. It is, therefore, not legally sustainable. 17. In our considered view, taking into consideration the facts and circumstances of the case such as Respondents family background, his age (8 years), nature of permanent disability suffered by the Respondent, his performance in studies, the determination of monthly/yearly income made by the High Court, expenses incurred and all the relevant factors, which are usually taken into account in awarding compensation to the victim, the Respondent is held entitled for a total lump sum compensation of Rs. 90,00,000/- (Rs. Ninety lacs) together with interest payable at the rate of 6% p.a. in place of Rs. 1,25,00,000/- awarded by the High Court.
### Response:
1
### Explanation:
13. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find some force in the submissions urged by the learned Counsel for the Appellant-State and, hence, we are inclined to interfere in the impugned order and, in consequence, reduce the compensation awarded by the High Court to the extent indicated infra15. The High Court held and, in our view, rightly that the incident in question occurred due to negligence of the State and its authorities and hence the State was vicariously liable to compensate the Respondent for the losses sustained by the Respondent. It may be mentioned that the State rightly did not challenge this finding and hence we need not go into its correctness. The High Court further held and, in our view, rightly that having regard to the family background of the Respondent and further Respondents excellent performance as a brilliant student in studies, he would have easily earned Rs. 30,000/- per month in his life. We find no good ground to interfere in this finding of fact, which, in our opinion, is based on proper material on record16. The High Court, however, further awarded Rs. 10,00,000/- towards loss of companionship, life amenities/pleasures, and happiness, Rs. 10,00,000/- for pain and suffering, mental distress, trauma and discomfort and inconvenience, Rs. 10,00,000/- towards attendant/nursing expenses, and lastly, Rs. 5,00,000/- for securing artificial/robotic limbs and future medical expenses. In our considered view, the award of compensation under these 4 heads appears to be on very higher side and is not supported by any evidence. It is, in our view, based on assumptions and presumptions to which we do not concur. In our view, entitlement under these heads is one thing and the quantum of grant of compensation under these heads is another thing. In this case, as rightly urged by the learned Counsel for the Appellant-State that lump sum award of compensation under these heads is on higher side and is not supported by any evidence. It is, therefore, not legally sustainable17. In our considered view, taking into consideration the facts and circumstances of the case such as Respondents family background, his age (8 years), nature of permanent disability suffered by the Respondent, his performance in studies, the determination of monthly/yearly income made by the High Court, expenses incurred and all the relevant factors, which are usually taken into account in awarding compensation to the victim, the Respondent is held entitled for a total lump sum compensation of Rs. 90,00,000/- (Rs. Ninety lacs) together with interest payable at the rate of 6% p.a. in place of Rs. 1,25,00,000/- awarded by the High Court.
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Commissioner Of Wealth Tax,Gujarat-Iii, Ahmedabad Vs. Ellis Bridge Gymkhana Etc. Etc | and the Excess Profits Tax Act, 1940, also the Hindu Undivided Family was made a unit of taxation. For the purposes of these Acts Mapilla Tarwads governed by the Marumakkathayam law have been regarded as individuals." * 28. On the basis of the reasoning given in the case of Venugopala this Court had no difficulty in holding that having regard to the legislative history of revenue laws, Mapilla Tarwad had to be assessed to tax as an "individual". 29. The Court laid special emphasis on the aforesaid passage in the judgment of Venugopala case and reiterated that for the purpose of various tax laws set out in that passage "Mapilla Tarwads governed by the Marumakkathayam law have been regarded as individuals". 30. This judgment took note of the fact that long before the Wealth Tax Act was passed Mapilla Tarwad families had been treated as distinct taxable entities and had been taxed as individuals under various tax laws for a very long time. Therefore, "individual" in Section 3 of the Wealth Tax Act must be given the same meaning as was given in various other tax laws so as to include a Mapilla Tarwad family. 31. This judgment really goes against the contention made on behalf of the Revenue. The Court first laid down that a charging section of a taxing statute has to be strictly construed. The Court found that the charging section of various taxing statutes had imposed tax on Hindu Undivided Families as well as on "individuals". It has been held under various fiscal statutes that Mapilla Tarwads cannot be taxed as a Hindu Undivided Family but will have to be taxed as an "individual". If "individual" is understood under the Wealth Tax Act, in the same sense in which it has been understood in various fiscal statutes, then "individual" under Section 3 of the Wealth Tax Act will include a Mapilla Tarwad. But in the various tax Acts mentioned in that judgment "individual" has not been interpreted to include a firm or an association of persons. 32. That the charging section of the Wealth Tax Act does not impose a charge on a firm or association of persons has been made clear by explanatory notes on the provisions relating to direct taxes issued by the Central Board of Direct Taxes on 29-6-1981 clarifying the Finance Bill, 1981. The idea behind introduction of the new Section 21-AA was explained in the following words "21.1 Under the Wealth Tax Act, 1957, individuals and Hindu Undivided Families are taxable entities but an association of persons is not charged to wealth tax on its net wealth. Where an individual or a Hindu Undivided Family is a member of an association of persons, the value of the interest of such member in the association of persons is determined in accordance with the provisions of the rules and is includible in the net wealth of the member21.2 Instances had come to the notice of the Government where certain assessees had resorted to the creation of a large number of associations of persons without specifically defining the shares of the members therein with a view to avoiding proper tax liability. Under the existing provisions, only the value of the interest of the member in the association which is ascertainable is includible in his net wealth. Accordingly, to the extent the value of the interest of the member in the association cannot be ascertained or is unknown, no wealth tax is payable by such member in respect thereof21.3 In order to counter such attempts at tax avoidance through the medium of multiple associations of persons without defining the shares of the members, the Finance Act has inserted a new Section 21-AA in the Wealth Tax Act to provide for assessment in the case of associations of persons which do not define the shares of the members in the assets thereof. Sub-section (1) provides that where assets chargeable to wealth tax are held by an association of persons (other than a company or a cooperative society) and the individual shares of the members of the said association in income or the assets of the association on the date of its formation or at any time thereafter, are indeterminate or unknown, wealth tax will be levied upon and recovered from such association in the like manner and to the same extent as it is leviable upon and recoverable from an individual who is a citizen of India and is resident in India at the rates specified in Part I of Schedule I or at the rate of 3 per cent, whichever course is more beneficial to the Revenue." * 33. It will appear from this notification that the Central Board of Direct Taxes clearly recognised that the charge of wealth tax was on individuals and Hindu Undivided Families and not on any other body of individuals or association of persons. Section 21-AA has been introduced to prevent evasion of tax. In a normal case, in assessment of an individual, his wealth from every source will be added up and computed in accordance with provisions of the Wealth Tax Act to arrive at the net wealth which has to be taxed. So, if an individual has any interest in a firm or any other non-corporate body, then his interest in those bodies or associations will be added up in his wealth. It is only where such addition is not possible because the shares of the individual in a body holding property is unknown or indeterminate, resort will be taken to Section 21-AA and association of individuals will be taxed as association of persons. 34. In the instant case, we are concerned with Assessment Years 1970-71 to 1977-78, Section 21-AA was not in force during the relevant assessment period. There was no way that a club could be assessed as an association of persons in these assessment years, It is not even the case of the Revenue that individual members interest in the club was indeterminate or unknown. | 0[ds]17. It will be seen that assessment as an association of persons can be made only when the individual shares of members of the association in the income or assets or both of the association on the date of its formation or any time thereafter are indeterminate or unknown. It is only in such an eventuality that an assessment can be made on an association of persons, otherwise not.(2) of Section 21AA deals with cases of such associations as mentioned in(1). That means only association of persons in which individual shares of the members were unknown or indeterminate can be subjected to wealth tax.(3) also deals with association of persons referred to inns (4) and (5) deal with some consequences which will follow the members of an association of persons spoken of in(1) in the case of discontinuance orIt is not the case of the Revenue before us that the members of the club were unknown or that their interest in the assets of the club was indeterminate, In fact, no argument was advanced on this aspect of the matter in any of the cases that have come for hearing along with this case. In fact, a list of members of the club should be readily available. In any event, there is no finding of fact that particulars of members were unknown or their interest in the assets of the club wereIn our view, Sectionfar from helping the case of the Revenue directly goes against its contention. An association of persons cannot be taxed at all under Section 3 of the Act. That is why an amendment was necessary to be made bythe Finance Act, 1981 whereby Sectionwas inserted to bring to tax net wealth of an association of persons where individual shares of the members of the association were unknown or. It will appear from this notification that the Central Board of Direct Taxes clearly recognised that the charge of wealth tax was on individuals and Hindu Undivided Families and not on any other body of individuals or association of persons. Sectionhas been introduced to prevent evasion of tax. In a normal case, in assessment of an individual, his wealth from every source will be added up and computed in accordance with provisions of the Wealth Tax Act to arrive at the net wealth which has to be taxed. So, if an individual has any interest in a firm or any otherbody, then his interest in those bodies or associations will be added up in his wealth. It is only where such addition is not possible because the shares of the individual in a body holding property is unknown or indeterminate, resort will be taken to Sectionand association of individuals will be taxed as association ofIn the instant case, we are concerned with Assessment Years8, Sectionwas not in force during the relevant assessment period. There was no way that a club could be assessed as an association of persons in these assessment years, It is not even the case of the Revenue that individual members interest in the club was indeterminate or unknown | 0 | 6,264 | 565 | ### 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:
and the Excess Profits Tax Act, 1940, also the Hindu Undivided Family was made a unit of taxation. For the purposes of these Acts Mapilla Tarwads governed by the Marumakkathayam law have been regarded as individuals." * 28. On the basis of the reasoning given in the case of Venugopala this Court had no difficulty in holding that having regard to the legislative history of revenue laws, Mapilla Tarwad had to be assessed to tax as an "individual". 29. The Court laid special emphasis on the aforesaid passage in the judgment of Venugopala case and reiterated that for the purpose of various tax laws set out in that passage "Mapilla Tarwads governed by the Marumakkathayam law have been regarded as individuals". 30. This judgment took note of the fact that long before the Wealth Tax Act was passed Mapilla Tarwad families had been treated as distinct taxable entities and had been taxed as individuals under various tax laws for a very long time. Therefore, "individual" in Section 3 of the Wealth Tax Act must be given the same meaning as was given in various other tax laws so as to include a Mapilla Tarwad family. 31. This judgment really goes against the contention made on behalf of the Revenue. The Court first laid down that a charging section of a taxing statute has to be strictly construed. The Court found that the charging section of various taxing statutes had imposed tax on Hindu Undivided Families as well as on "individuals". It has been held under various fiscal statutes that Mapilla Tarwads cannot be taxed as a Hindu Undivided Family but will have to be taxed as an "individual". If "individual" is understood under the Wealth Tax Act, in the same sense in which it has been understood in various fiscal statutes, then "individual" under Section 3 of the Wealth Tax Act will include a Mapilla Tarwad. But in the various tax Acts mentioned in that judgment "individual" has not been interpreted to include a firm or an association of persons. 32. That the charging section of the Wealth Tax Act does not impose a charge on a firm or association of persons has been made clear by explanatory notes on the provisions relating to direct taxes issued by the Central Board of Direct Taxes on 29-6-1981 clarifying the Finance Bill, 1981. The idea behind introduction of the new Section 21-AA was explained in the following words "21.1 Under the Wealth Tax Act, 1957, individuals and Hindu Undivided Families are taxable entities but an association of persons is not charged to wealth tax on its net wealth. Where an individual or a Hindu Undivided Family is a member of an association of persons, the value of the interest of such member in the association of persons is determined in accordance with the provisions of the rules and is includible in the net wealth of the member21.2 Instances had come to the notice of the Government where certain assessees had resorted to the creation of a large number of associations of persons without specifically defining the shares of the members therein with a view to avoiding proper tax liability. Under the existing provisions, only the value of the interest of the member in the association which is ascertainable is includible in his net wealth. Accordingly, to the extent the value of the interest of the member in the association cannot be ascertained or is unknown, no wealth tax is payable by such member in respect thereof21.3 In order to counter such attempts at tax avoidance through the medium of multiple associations of persons without defining the shares of the members, the Finance Act has inserted a new Section 21-AA in the Wealth Tax Act to provide for assessment in the case of associations of persons which do not define the shares of the members in the assets thereof. Sub-section (1) provides that where assets chargeable to wealth tax are held by an association of persons (other than a company or a cooperative society) and the individual shares of the members of the said association in income or the assets of the association on the date of its formation or at any time thereafter, are indeterminate or unknown, wealth tax will be levied upon and recovered from such association in the like manner and to the same extent as it is leviable upon and recoverable from an individual who is a citizen of India and is resident in India at the rates specified in Part I of Schedule I or at the rate of 3 per cent, whichever course is more beneficial to the Revenue." * 33. It will appear from this notification that the Central Board of Direct Taxes clearly recognised that the charge of wealth tax was on individuals and Hindu Undivided Families and not on any other body of individuals or association of persons. Section 21-AA has been introduced to prevent evasion of tax. In a normal case, in assessment of an individual, his wealth from every source will be added up and computed in accordance with provisions of the Wealth Tax Act to arrive at the net wealth which has to be taxed. So, if an individual has any interest in a firm or any other non-corporate body, then his interest in those bodies or associations will be added up in his wealth. It is only where such addition is not possible because the shares of the individual in a body holding property is unknown or indeterminate, resort will be taken to Section 21-AA and association of individuals will be taxed as association of persons. 34. In the instant case, we are concerned with Assessment Years 1970-71 to 1977-78, Section 21-AA was not in force during the relevant assessment period. There was no way that a club could be assessed as an association of persons in these assessment years, It is not even the case of the Revenue that individual members interest in the club was indeterminate or unknown.
### Response:
0
### Explanation:
17. It will be seen that assessment as an association of persons can be made only when the individual shares of members of the association in the income or assets or both of the association on the date of its formation or any time thereafter are indeterminate or unknown. It is only in such an eventuality that an assessment can be made on an association of persons, otherwise not.(2) of Section 21AA deals with cases of such associations as mentioned in(1). That means only association of persons in which individual shares of the members were unknown or indeterminate can be subjected to wealth tax.(3) also deals with association of persons referred to inns (4) and (5) deal with some consequences which will follow the members of an association of persons spoken of in(1) in the case of discontinuance orIt is not the case of the Revenue before us that the members of the club were unknown or that their interest in the assets of the club was indeterminate, In fact, no argument was advanced on this aspect of the matter in any of the cases that have come for hearing along with this case. In fact, a list of members of the club should be readily available. In any event, there is no finding of fact that particulars of members were unknown or their interest in the assets of the club wereIn our view, Sectionfar from helping the case of the Revenue directly goes against its contention. An association of persons cannot be taxed at all under Section 3 of the Act. That is why an amendment was necessary to be made bythe Finance Act, 1981 whereby Sectionwas inserted to bring to tax net wealth of an association of persons where individual shares of the members of the association were unknown or. It will appear from this notification that the Central Board of Direct Taxes clearly recognised that the charge of wealth tax was on individuals and Hindu Undivided Families and not on any other body of individuals or association of persons. Sectionhas been introduced to prevent evasion of tax. In a normal case, in assessment of an individual, his wealth from every source will be added up and computed in accordance with provisions of the Wealth Tax Act to arrive at the net wealth which has to be taxed. So, if an individual has any interest in a firm or any otherbody, then his interest in those bodies or associations will be added up in his wealth. It is only where such addition is not possible because the shares of the individual in a body holding property is unknown or indeterminate, resort will be taken to Sectionand association of individuals will be taxed as association ofIn the instant case, we are concerned with Assessment Years8, Sectionwas not in force during the relevant assessment period. There was no way that a club could be assessed as an association of persons in these assessment years, It is not even the case of the Revenue that individual members interest in the club was indeterminate or unknown
|
State, Cbi Vs. Sashi Balasubramnian | however, notice that in R.K. Garg etc. v. Union of India and Others [(1981) 4 SCC 675] , it was held that only because exemption had been granted in relation to purchase of bearer bonds, the same would not mean that the offender shall stand immuned from other offences also. Bhagwati, J. speaking for the majority opined : ".....It will be seen that the immunities granted under Section 3, sub-section (1) are very limited in scope. They do not protect the holder of Special Bearer Bonds from any inquiry or investigation into concealed income which could have been made if he had not subscribed to or acquired Special Bearer Bonds. There is no immunity from taxation given to the black money which may be invested in Special Bearer Bonds. That money remains subject to tax with all consequential penalties, if it can be discovered independently of the fact of subscription to or acquisition of Special Bearer Bonds. The only protection given by Section 3, sub- section (1) is that the fact of subscription to or acquisition of Special Bearer Bonds shall be ignored altogether and shall not be relied upon as evidence showing possession of undisclosed money. This provision relegates the Revenue to the position as if Special Bearer Bonds had not been purchased at all. If without taking into account the fact of subscription to or acquisition of Special Bearer Bonds and totally ignoring it as if it were non-existent, any inquiry or investigation into concealed income could be carried out and such income detected and unearthed, it would be open to the Revenue to do so and it would be no answer for the assessee to say that this money has been invested by him in Special Bearer Bonds and it is therefore exempt from tax or that he is on that account not liable to prosecution and penalty for concealment of such income. This is the main difference between the impugned Act and the Taxation Laws (Amendment and Miscellaneous Provisions) Act, 1965. Under the latter Act, where gold is acquired by a person out of his undisclosed income, which is the same thing as black money, and such gold is tendered by him as subscription for the National Defence Gold Bonds, 1980, the income invested in such gold is exempted from tax, but where Special Bearer Bonds are purchased out of undisclosed income under the impugned Act, the income invested in the Special Bearer Bonds is not exempt from tax and if independently of the fact of purchase of the Special Bearer Bonds and ignoring them altogether, such income can be detected, it would be subject to tax. The entire machinery of the taxation laws for inquiry and investigation into concealed income is thus left untouched and no protection is granted to a person in respect of his concealed income merely because he has invested such income in Special Bearer Bonds. It is therefore incorrect to say that as soon as any person purchases Special Bearer Bonds, he is immunised against the processes of taxation laws. Here there is no amnesty granted in respect of any part of the concealed income even though it be invested in Special Bearer Bonds. The whole object of the impugned Act is to induce those having black money to convert it into white money by making it available to the State for productive purposes, without granting in return any immunity in respect of such black money, if it could be detected through the ordinary processes of taxation laws without taking into account the fact of purchase of Special Bearer Bonds...." 47. We may at this stage deal with another contention viz. that if in the connected matter where other public servants were parties, no appeal having been filed from the judgment of the High Court by the C.B.I., this appeal would be maintainable. This aspect of the matter has been considered by a three-Judge Bench of this Court in Government of West Bengal v. Tarun K. Roy and Others [(2004) 1 SCC 347], wherein it was categorically stated: "....Non-filing of an appeal, in any event, would not be a ground for refusing to consider a matter on its own merits. (See State of Maharashtra v. Digambar.) 29. In State of Bihar v. Ramdeo Yadav wherein this Court noticed Debdas Kumar1 by holding: (SCC p. 494, para 4) "4. Shri B.B. Singh, the learned counsel for the appellants, contended that though an appeal against the earlier order of the High Court has not been filed, since larger public interest is involved in the interpretation given by the High Court following its earlier judgment, the matter requires consideration by this Court. We find force in this contention. In the similar circumstances, this Court in State of Maharashtra v. Digambar and in State of W.B. vs. Debdas Kumar had held that though an appeal was not filed against an earlier order, when public interest is involved in interpretation of law, the Court is entitled to go into the question." 48. [See also Union of India vs. Pramod Gupta (Dead) by Lrs. and others - (2005) 12 SCC 1 ] 49. In this case also public interest is involved as interpretation of the provisions of the Act were in question. Yet again there cannot be any equality in illegality.50. [See Secretary, State of Karnataka and others vs. Umadevi (3) and others [(2006) 4 SCC 1] 51. We, therefore, are of the opinion that the impugned judgment cannot be sustained. It is set aside accordingly.52. The High Court, however, did not go into the merit of the matter. It proceeded on the basis that the continuation of the prosecution as against Respondents was unsustainable in law. Although prosecution as against Respondents herein may be held to be not maintainable, in our opinion, they are entitled to contend that even if the materials brought on records are given face value and taken to be correct in their entirety, no case has been made out as against them. | 1[ds]29. In any view of the matter, an immunity is granted only in respect of offences purported to have been committed under direct tax enactment or indirect tax enactment, but by no stretch of imagination, the same would be granted in respect of offences under the Prevention of Corruption Act. A person may commit several offences under different Acts; immunity granted in relation to one Act would not mean that immunity granted would automatically extend to others. By way of example , we may notice that a person may be prosecuted for commission of an offence in relation to property under the Indian Penal Code as also under another Act, say for example, the Prevention of Corruption Act. Whereas charges under the Prevention of Corruption Act may fail, no sanction having been accorded therefor, the charges under the Penal Code would not.30. The High Court has not held that the offences alleged against Respondents are so inextricably connected that it cannot be separated so much so that in the event if it be held that private parties cannot be proceeded with at all, the case against public servants, would invariably fail. We, thus, as at present advised, do not intend to delve deep into the said question. However, to be fair to learned counsel, we may notice the decisions cited at the bar.31. Reliance placed by Mr. Singhvi on Devarapalli Lakshminarayana Reddy and Others v. V. Narayana Reddy and Others [(1976) 3 SCC 252] has no application to the facts and circumstances of the present case. The question which arose for consideration therein was required to be determined in the context of the provisions of Sections 200 and 202 of the 1898 CodeSections 200 and 202 of the 1973 Code. The question was as to whether cognizance is taken before issuance of process or not.Institution of a prosecution and institution of a complaint case in a criminal court stand on different footings. Whereas summons to an accused in a complaint case can be issued only upon taking cognizance of the offence, the same would not mean in a case where first information report has been lodged resulting in initiation of investigation or where it has been referred to police or other authorities for enquiry; even then a prosecution may not be held to have been initiated at that stage.33. What transpires from the said decision is that whereas before cognizance is taken, application of mind on the part of the court is imperative, taking action of some other kind would not mean that cognizance has been taken. In some cases, even after lodging of the F.I.R., a preliminary enquiry which may not be an investigation into the crime, may be initiated.We may at this stage deal with another contention viz. that if in the connected matter where other public servants were parties, no appeal having been filed from the judgment of the High Court by the C.B.I., this appeal would be maintainable. This aspect of the matter has been considered by aBench of this Court in Government of West Bengal v. Tarun K. Roy and Others [(2004) 1 SCCIn this case also public interest is involved as interpretation of the provisions of the Act were in question. Yet again there cannot be any equality in illegality.50. [See Secretary, State of Karnataka and others vs. Umadevi (3) and others [(2006) 4 SCC 1] 51. We, therefore, are of the opinion that the impugned judgment cannot be sustained. It is set aside accordingly.52. The High Court, however, did not go into the merit of the matter. It proceeded on the basis that the continuation of the prosecution as against Respondents was unsustainable in law. Although prosecution as against Respondents herein may be held to be not maintainable, in our opinion, they are entitled to contend that even if the materials brought on records are given face value and taken to be correct in their entirety, no case has been made out as against them. | 1 | 6,636 | 739 | ### 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:
however, notice that in R.K. Garg etc. v. Union of India and Others [(1981) 4 SCC 675] , it was held that only because exemption had been granted in relation to purchase of bearer bonds, the same would not mean that the offender shall stand immuned from other offences also. Bhagwati, J. speaking for the majority opined : ".....It will be seen that the immunities granted under Section 3, sub-section (1) are very limited in scope. They do not protect the holder of Special Bearer Bonds from any inquiry or investigation into concealed income which could have been made if he had not subscribed to or acquired Special Bearer Bonds. There is no immunity from taxation given to the black money which may be invested in Special Bearer Bonds. That money remains subject to tax with all consequential penalties, if it can be discovered independently of the fact of subscription to or acquisition of Special Bearer Bonds. The only protection given by Section 3, sub- section (1) is that the fact of subscription to or acquisition of Special Bearer Bonds shall be ignored altogether and shall not be relied upon as evidence showing possession of undisclosed money. This provision relegates the Revenue to the position as if Special Bearer Bonds had not been purchased at all. If without taking into account the fact of subscription to or acquisition of Special Bearer Bonds and totally ignoring it as if it were non-existent, any inquiry or investigation into concealed income could be carried out and such income detected and unearthed, it would be open to the Revenue to do so and it would be no answer for the assessee to say that this money has been invested by him in Special Bearer Bonds and it is therefore exempt from tax or that he is on that account not liable to prosecution and penalty for concealment of such income. This is the main difference between the impugned Act and the Taxation Laws (Amendment and Miscellaneous Provisions) Act, 1965. Under the latter Act, where gold is acquired by a person out of his undisclosed income, which is the same thing as black money, and such gold is tendered by him as subscription for the National Defence Gold Bonds, 1980, the income invested in such gold is exempted from tax, but where Special Bearer Bonds are purchased out of undisclosed income under the impugned Act, the income invested in the Special Bearer Bonds is not exempt from tax and if independently of the fact of purchase of the Special Bearer Bonds and ignoring them altogether, such income can be detected, it would be subject to tax. The entire machinery of the taxation laws for inquiry and investigation into concealed income is thus left untouched and no protection is granted to a person in respect of his concealed income merely because he has invested such income in Special Bearer Bonds. It is therefore incorrect to say that as soon as any person purchases Special Bearer Bonds, he is immunised against the processes of taxation laws. Here there is no amnesty granted in respect of any part of the concealed income even though it be invested in Special Bearer Bonds. The whole object of the impugned Act is to induce those having black money to convert it into white money by making it available to the State for productive purposes, without granting in return any immunity in respect of such black money, if it could be detected through the ordinary processes of taxation laws without taking into account the fact of purchase of Special Bearer Bonds...." 47. We may at this stage deal with another contention viz. that if in the connected matter where other public servants were parties, no appeal having been filed from the judgment of the High Court by the C.B.I., this appeal would be maintainable. This aspect of the matter has been considered by a three-Judge Bench of this Court in Government of West Bengal v. Tarun K. Roy and Others [(2004) 1 SCC 347], wherein it was categorically stated: "....Non-filing of an appeal, in any event, would not be a ground for refusing to consider a matter on its own merits. (See State of Maharashtra v. Digambar.) 29. In State of Bihar v. Ramdeo Yadav wherein this Court noticed Debdas Kumar1 by holding: (SCC p. 494, para 4) "4. Shri B.B. Singh, the learned counsel for the appellants, contended that though an appeal against the earlier order of the High Court has not been filed, since larger public interest is involved in the interpretation given by the High Court following its earlier judgment, the matter requires consideration by this Court. We find force in this contention. In the similar circumstances, this Court in State of Maharashtra v. Digambar and in State of W.B. vs. Debdas Kumar had held that though an appeal was not filed against an earlier order, when public interest is involved in interpretation of law, the Court is entitled to go into the question." 48. [See also Union of India vs. Pramod Gupta (Dead) by Lrs. and others - (2005) 12 SCC 1 ] 49. In this case also public interest is involved as interpretation of the provisions of the Act were in question. Yet again there cannot be any equality in illegality.50. [See Secretary, State of Karnataka and others vs. Umadevi (3) and others [(2006) 4 SCC 1] 51. We, therefore, are of the opinion that the impugned judgment cannot be sustained. It is set aside accordingly.52. The High Court, however, did not go into the merit of the matter. It proceeded on the basis that the continuation of the prosecution as against Respondents was unsustainable in law. Although prosecution as against Respondents herein may be held to be not maintainable, in our opinion, they are entitled to contend that even if the materials brought on records are given face value and taken to be correct in their entirety, no case has been made out as against them.
### Response:
1
### Explanation:
29. In any view of the matter, an immunity is granted only in respect of offences purported to have been committed under direct tax enactment or indirect tax enactment, but by no stretch of imagination, the same would be granted in respect of offences under the Prevention of Corruption Act. A person may commit several offences under different Acts; immunity granted in relation to one Act would not mean that immunity granted would automatically extend to others. By way of example , we may notice that a person may be prosecuted for commission of an offence in relation to property under the Indian Penal Code as also under another Act, say for example, the Prevention of Corruption Act. Whereas charges under the Prevention of Corruption Act may fail, no sanction having been accorded therefor, the charges under the Penal Code would not.30. The High Court has not held that the offences alleged against Respondents are so inextricably connected that it cannot be separated so much so that in the event if it be held that private parties cannot be proceeded with at all, the case against public servants, would invariably fail. We, thus, as at present advised, do not intend to delve deep into the said question. However, to be fair to learned counsel, we may notice the decisions cited at the bar.31. Reliance placed by Mr. Singhvi on Devarapalli Lakshminarayana Reddy and Others v. V. Narayana Reddy and Others [(1976) 3 SCC 252] has no application to the facts and circumstances of the present case. The question which arose for consideration therein was required to be determined in the context of the provisions of Sections 200 and 202 of the 1898 CodeSections 200 and 202 of the 1973 Code. The question was as to whether cognizance is taken before issuance of process or not.Institution of a prosecution and institution of a complaint case in a criminal court stand on different footings. Whereas summons to an accused in a complaint case can be issued only upon taking cognizance of the offence, the same would not mean in a case where first information report has been lodged resulting in initiation of investigation or where it has been referred to police or other authorities for enquiry; even then a prosecution may not be held to have been initiated at that stage.33. What transpires from the said decision is that whereas before cognizance is taken, application of mind on the part of the court is imperative, taking action of some other kind would not mean that cognizance has been taken. In some cases, even after lodging of the F.I.R., a preliminary enquiry which may not be an investigation into the crime, may be initiated.We may at this stage deal with another contention viz. that if in the connected matter where other public servants were parties, no appeal having been filed from the judgment of the High Court by the C.B.I., this appeal would be maintainable. This aspect of the matter has been considered by aBench of this Court in Government of West Bengal v. Tarun K. Roy and Others [(2004) 1 SCCIn this case also public interest is involved as interpretation of the provisions of the Act were in question. Yet again there cannot be any equality in illegality.50. [See Secretary, State of Karnataka and others vs. Umadevi (3) and others [(2006) 4 SCC 1] 51. We, therefore, are of the opinion that the impugned judgment cannot be sustained. It is set aside accordingly.52. The High Court, however, did not go into the merit of the matter. It proceeded on the basis that the continuation of the prosecution as against Respondents was unsustainable in law. Although prosecution as against Respondents herein may be held to be not maintainable, in our opinion, they are entitled to contend that even if the materials brought on records are given face value and taken to be correct in their entirety, no case has been made out as against them.
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Dr. Subramanian Swamy Vs. Dr. Manmohan Singh | to judge the truth of the allegations on the basis of representation which may be filed by the accused person before the Sanctioning Authority, by asking the I.O. to offer his comments or to further investigate the matter in the light of representation made by the accused person or by otherwise holding a parallel investigation/enquiry by calling for the record/report of his department. (vii) However, if in any case, the Sanctioning Authority after consideration of the entire material placed before it, entertains any doubt on any point the competent authority may specify the doubt with sufficient particulars and may request the Authority who has sought sanction to clear the doubt. But that would be only to clear the doubt in order that the authority may apply its mind proper, and not for the purpose of considering the representations of the accused which may be filed while the matter is pending sanction. (viii) If the Sanctioning Authority seeks the comments of the IO while the matter is pending before it for sanction, it will almost be impossible for the Sanctioning Authority to adhere to the time limit allowed by the Supreme Court in Vineet Narains case. 31. The aforementioned guidelines are in conformity with the law laid down by this Court that while considering the issue regarding grant or refusal of sanction, the only thing which the Competent Authority is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence. The Competent Authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true. 32. In the light of the above discussion, we shall now consider whether the High Court was justified in refusing to entertain the writ petition filed by the appellant. In this context, it is apposite to observe that the High Court had proceeded under a wholly erroneous assumption that respondent No.1 had directed investigation by the CBI into the allegations of grave irregularities in the grant of licences. As a matter of fact, on receipt of representation dated 4.5.2009 that the grant of licences by respondent No.2 had resulted in huge loss to the Public Exchequer, the CVC got conducted an inquiry under Section 8(d) of the Central Vigilance Commission Act, 2003 and forwarded a copy of the report to the Director, CBI for making an investigation into the matter to establish the criminal conspiracy in the allocation of 2G spectrum under the UASL policy of the DoT and to bring to book all the wrongdoers. Thereupon, the CBI registered FIR No.RC-DI-2009-A-0045 dated 21.10.2009 against unknown officials of the DoT, unknown private persons/companies and others for offences under Section 120-B IPC read with Sections 13(2) and 13(1)(d) of the 1988 Act. For the next about one year, the matter remained dormant and the CBI took steps for vigorous investigation only when this Court intervened in the matter. The material placed on record does not show that the CBI had registered a case or started investigation at the instance of respondent No.1. 33. On his part, the appellant had submitted representation to respondent No. 1 almost one year to the registration of the first information report by the CBI and highlighted the grave irregularities committed in the grant of licences resulting in the loss of thousands of crores of rupees to the Public Exchequer. He continuously pursued the matter by sending letters to respondent No.1 at regular intervals. The affidavit filed by Shri V. Vidyawati, Director in the PMO shows that the matter was placed before respondent No.1 on 1.12.2008, who directed the concerned officer to examine and apprise him with the facts of the case. Surprisingly, instead of complying with the direction given by respondent No.1 the concerned officer sent the appellants representation to the DoT which was headed by none other than respondent No.2 against whom the appellant had made serious allegations of irregularities in the grant of licences. It was natural for respondent No.2 to have seized this opportunity, and he promptly sent letter dated 18.6.2009 to the appellant justifying the grant of licences. The concerned officer in the PMO then referred the matter to the Ministry of Law and Justice for advice. It is not possible to appreciate that even though the appellant repeatedly wrote letters to respondent No.1 highlighting the seriousness of the allegations made in his first representation and the fact that he had already supplied the facts and documents which could be made basis for grant of sanction to prosecute respondent No.2 and also pointed out that as per the judgments of this Court, detailed inquiry was not required to be made into the allegations, the concerned officers in the PMO kept the matter pending and then took the shelter of the fact that the CBI had registered the case and the investigation was pending. In our view, the officers in the PMO and the Ministry of Law and Justice, were duty bound to apprise respondent No.1 about seriousness of allegations made by the appellant and the judgments of this Court including the directions contained in paragraph 58(I) of the judgment in Vineet Narains case as also the guidelines framed by the CVC so as to enable him to take appropriate decision in the matter. By the very nature of the office held by him, respondent No. 1 is not expected to personally look into the minute details of each and every case placed before him and has to depend on his advisers and other officers. Unfortunately, those who were expected to give proper advice to respondent No. 1 and place full facts and legal position before him failed to do so. We have no doubt that if respondent No.1 had been apprised of the true factual and legal position regarding the representation made by the appellant, he would have surely taken appropriate decision and would not have allowed the matter to linger for a period of more than one year. | 1[ds]30. The CVC, after taking note of the judgment of the Punjab and Haryana High Court in Jagjit Singh v. State of Punjab (1996) Crl. Law Journal 2962, State of Bihar v. P. P. Sharma 1991 Supp. 1 SCC 222, Superintendent of Police (CBI) v. Deepak Chowdhary, (1995) 6 SC 225, framed guidelines which were circulated vide office order No.31/5/05 dated 12.5.2005. The relevant clauses of the guidelines are extracted below:2(i) Grant of sanction is an administrative act. The purpose is to protect the public servant from harassment by frivolous or vexatious prosecution and not to shield the corrupt. The question of giving opportunity to the public servant at that stage does not arise. The sanctioning authority has only to see whether the facts would prima-facie constitutes the offence(ii) The competent authority cannot embark upon an inquiry to judge the truth of the allegations on the basis of representation which may be filed by the accused person before the Sanctioning Authority, by asking the I.O. to offer his comments or to further investigate the matter in the light of representation made by the accused person or by otherwise holding a parallel investigation/enquiry by calling for the record/report of his department(vii) However, if in any case, the Sanctioning Authority after consideration of the entire material placed before it, entertains any doubt on any point the competent authority may specify the doubt with sufficient particulars and may request the Authority who has sought sanction to clear the doubt. But that would be only to clear the doubt in order that the authority may apply its mind proper, and not for the purpose of considering the representations of the accused which may be filed while the matter is pending sanction(viii) If the Sanctioning Authority seeks the comments of the IO while the matter is pending before it for sanction, it will almost be impossible for the Sanctioning Authority to adhere to the time limit allowed by the Supreme Court in Vineet Narains case31. The aforementioned guidelines are in conformity with the law laid down by this Court that while considering the issue regarding grant or refusal of sanction, the only thing which the Competent Authority is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence. The Competent Authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true32. In the light of the above discussion, we shall now consider whether the High Court was justified in refusing to entertain the writ petition filed by the appellant. In this context, it is apposite to observe that the High Court had proceeded under a wholly erroneous assumption that respondent No.1 had directed investigation by the CBI into the allegations of grave irregularities in the grant of licences. As a matter of fact, on receipt of representation dated 4.5.2009 that the grant of licences by respondent No.2 had resulted in huge loss to the Public Exchequer, the CVC got conducted an inquiry under Section 8(d) of the Central Vigilance Commission Act, 2003 and forwarded a copy of the report to the Director, CBI for making an investigation into the matter to establish the criminal conspiracy in the allocation of 2G spectrum under the UASL policy of the DoT and to bring to book all the wrongdoers. Thereupon, the CBI registered FIR No.RC-DI-2009-A-0045 dated 21.10.2009 against unknown officials of the DoT, unknown private persons/companies and others for offences under Section 120-B IPC read with Sections 13(2) and 13(1)(d) of the 1988 Act. For the next about one year, the matter remained dormant and the CBI took steps for vigorous investigation only when this Court intervened in the matter. The material placed on record does not show that the CBI had registered a case or started investigation at the instance of respondent No.133. On his part, the appellant had submitted representation to respondent No. 1 almost one year to the registration of the first information report by the CBI and highlighted the grave irregularities committed in the grant of licences resulting in the loss of thousands of crores of rupees to the Public Exchequer. He continuously pursued the matter by sending letters to respondent No.1 at regular intervals. The affidavit filed by Shri V. Vidyawati, Director in the PMO shows that the matter was placed before respondent No.1 on 1.12.2008, who directed the concerned officer to examine and apprise him with the facts of the case. Surprisingly, instead of complying with the direction given by respondent No.1 the concerned officer sent the appellants representation to the DoT which was headed by none other than respondent No.2 against whom the appellant had made serious allegations of irregularities in the grant of licences. It was natural for respondent No.2 to have seized this opportunity, and he promptly sent letter dated 18.6.2009 to the appellant justifying the grant of licences. The concerned officer in the PMO then referred the matter to the Ministry of Law and Justice for advice. It is not possible to appreciate that even though the appellant repeatedly wrote letters to respondent No.1 highlighting the seriousness of the allegations made in his first representation and the fact that he had already supplied the facts and documents which could be made basis for grant of sanction to prosecute respondent No.2 and also pointed out that as per the judgments of this Court, detailed inquiry was not required to be made into the allegations, the concerned officers in the PMO kept the matter pending and then took the shelter of the fact that the CBI had registered the case and the investigation was pending. In our view, the officers in the PMO and the Ministry of Law and Justice, were duty bound to apprise respondent No.1 about seriousness of allegations made by the appellant and the judgments of this Court including the directions contained in paragraph 58(I) of the judgment in Vineet Narains case as also the guidelines framed by the CVC so as to enable him to take appropriate decision in the matter. By the very nature of the office held by him, respondent No. 1 is not expected to personally look into the minute details of each and every case placed before him and has to depend on his advisers and other officers. Unfortunately, those who were expected to give proper advice to respondent No. 1 and place full facts and legal position before him failed to do so. We have no doubt that if respondent No.1 had been apprised of the true factual and legal position regarding the representation made by the appellant, he would have surely taken appropriate decision and would not have allowed the matter to linger for a period of more than one year. | 1 | 11,949 | 1,236 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
to judge the truth of the allegations on the basis of representation which may be filed by the accused person before the Sanctioning Authority, by asking the I.O. to offer his comments or to further investigate the matter in the light of representation made by the accused person or by otherwise holding a parallel investigation/enquiry by calling for the record/report of his department. (vii) However, if in any case, the Sanctioning Authority after consideration of the entire material placed before it, entertains any doubt on any point the competent authority may specify the doubt with sufficient particulars and may request the Authority who has sought sanction to clear the doubt. But that would be only to clear the doubt in order that the authority may apply its mind proper, and not for the purpose of considering the representations of the accused which may be filed while the matter is pending sanction. (viii) If the Sanctioning Authority seeks the comments of the IO while the matter is pending before it for sanction, it will almost be impossible for the Sanctioning Authority to adhere to the time limit allowed by the Supreme Court in Vineet Narains case. 31. The aforementioned guidelines are in conformity with the law laid down by this Court that while considering the issue regarding grant or refusal of sanction, the only thing which the Competent Authority is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence. The Competent Authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true. 32. In the light of the above discussion, we shall now consider whether the High Court was justified in refusing to entertain the writ petition filed by the appellant. In this context, it is apposite to observe that the High Court had proceeded under a wholly erroneous assumption that respondent No.1 had directed investigation by the CBI into the allegations of grave irregularities in the grant of licences. As a matter of fact, on receipt of representation dated 4.5.2009 that the grant of licences by respondent No.2 had resulted in huge loss to the Public Exchequer, the CVC got conducted an inquiry under Section 8(d) of the Central Vigilance Commission Act, 2003 and forwarded a copy of the report to the Director, CBI for making an investigation into the matter to establish the criminal conspiracy in the allocation of 2G spectrum under the UASL policy of the DoT and to bring to book all the wrongdoers. Thereupon, the CBI registered FIR No.RC-DI-2009-A-0045 dated 21.10.2009 against unknown officials of the DoT, unknown private persons/companies and others for offences under Section 120-B IPC read with Sections 13(2) and 13(1)(d) of the 1988 Act. For the next about one year, the matter remained dormant and the CBI took steps for vigorous investigation only when this Court intervened in the matter. The material placed on record does not show that the CBI had registered a case or started investigation at the instance of respondent No.1. 33. On his part, the appellant had submitted representation to respondent No. 1 almost one year to the registration of the first information report by the CBI and highlighted the grave irregularities committed in the grant of licences resulting in the loss of thousands of crores of rupees to the Public Exchequer. He continuously pursued the matter by sending letters to respondent No.1 at regular intervals. The affidavit filed by Shri V. Vidyawati, Director in the PMO shows that the matter was placed before respondent No.1 on 1.12.2008, who directed the concerned officer to examine and apprise him with the facts of the case. Surprisingly, instead of complying with the direction given by respondent No.1 the concerned officer sent the appellants representation to the DoT which was headed by none other than respondent No.2 against whom the appellant had made serious allegations of irregularities in the grant of licences. It was natural for respondent No.2 to have seized this opportunity, and he promptly sent letter dated 18.6.2009 to the appellant justifying the grant of licences. The concerned officer in the PMO then referred the matter to the Ministry of Law and Justice for advice. It is not possible to appreciate that even though the appellant repeatedly wrote letters to respondent No.1 highlighting the seriousness of the allegations made in his first representation and the fact that he had already supplied the facts and documents which could be made basis for grant of sanction to prosecute respondent No.2 and also pointed out that as per the judgments of this Court, detailed inquiry was not required to be made into the allegations, the concerned officers in the PMO kept the matter pending and then took the shelter of the fact that the CBI had registered the case and the investigation was pending. In our view, the officers in the PMO and the Ministry of Law and Justice, were duty bound to apprise respondent No.1 about seriousness of allegations made by the appellant and the judgments of this Court including the directions contained in paragraph 58(I) of the judgment in Vineet Narains case as also the guidelines framed by the CVC so as to enable him to take appropriate decision in the matter. By the very nature of the office held by him, respondent No. 1 is not expected to personally look into the minute details of each and every case placed before him and has to depend on his advisers and other officers. Unfortunately, those who were expected to give proper advice to respondent No. 1 and place full facts and legal position before him failed to do so. We have no doubt that if respondent No.1 had been apprised of the true factual and legal position regarding the representation made by the appellant, he would have surely taken appropriate decision and would not have allowed the matter to linger for a period of more than one year.
### Response:
1
### Explanation:
cannot embark upon an inquiry to judge the truth of the allegations on the basis of representation which may be filed by the accused person before the Sanctioning Authority, by asking the I.O. to offer his comments or to further investigate the matter in the light of representation made by the accused person or by otherwise holding a parallel investigation/enquiry by calling for the record/report of his department(vii) However, if in any case, the Sanctioning Authority after consideration of the entire material placed before it, entertains any doubt on any point the competent authority may specify the doubt with sufficient particulars and may request the Authority who has sought sanction to clear the doubt. But that would be only to clear the doubt in order that the authority may apply its mind proper, and not for the purpose of considering the representations of the accused which may be filed while the matter is pending sanction(viii) If the Sanctioning Authority seeks the comments of the IO while the matter is pending before it for sanction, it will almost be impossible for the Sanctioning Authority to adhere to the time limit allowed by the Supreme Court in Vineet Narains case31. The aforementioned guidelines are in conformity with the law laid down by this Court that while considering the issue regarding grant or refusal of sanction, the only thing which the Competent Authority is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence. The Competent Authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true32. In the light of the above discussion, we shall now consider whether the High Court was justified in refusing to entertain the writ petition filed by the appellant. In this context, it is apposite to observe that the High Court had proceeded under a wholly erroneous assumption that respondent No.1 had directed investigation by the CBI into the allegations of grave irregularities in the grant of licences. As a matter of fact, on receipt of representation dated 4.5.2009 that the grant of licences by respondent No.2 had resulted in huge loss to the Public Exchequer, the CVC got conducted an inquiry under Section 8(d) of the Central Vigilance Commission Act, 2003 and forwarded a copy of the report to the Director, CBI for making an investigation into the matter to establish the criminal conspiracy in the allocation of 2G spectrum under the UASL policy of the DoT and to bring to book all the wrongdoers. Thereupon, the CBI registered FIR No.RC-DI-2009-A-0045 dated 21.10.2009 against unknown officials of the DoT, unknown private persons/companies and others for offences under Section 120-B IPC read with Sections 13(2) and 13(1)(d) of the 1988 Act. For the next about one year, the matter remained dormant and the CBI took steps for vigorous investigation only when this Court intervened in the matter. The material placed on record does not show that the CBI had registered a case or started investigation at the instance of respondent No.133. On his part, the appellant had submitted representation to respondent No. 1 almost one year to the registration of the first information report by the CBI and highlighted the grave irregularities committed in the grant of licences resulting in the loss of thousands of crores of rupees to the Public Exchequer. He continuously pursued the matter by sending letters to respondent No.1 at regular intervals. The affidavit filed by Shri V. Vidyawati, Director in the PMO shows that the matter was placed before respondent No.1 on 1.12.2008, who directed the concerned officer to examine and apprise him with the facts of the case. Surprisingly, instead of complying with the direction given by respondent No.1 the concerned officer sent the appellants representation to the DoT which was headed by none other than respondent No.2 against whom the appellant had made serious allegations of irregularities in the grant of licences. It was natural for respondent No.2 to have seized this opportunity, and he promptly sent letter dated 18.6.2009 to the appellant justifying the grant of licences. The concerned officer in the PMO then referred the matter to the Ministry of Law and Justice for advice. It is not possible to appreciate that even though the appellant repeatedly wrote letters to respondent No.1 highlighting the seriousness of the allegations made in his first representation and the fact that he had already supplied the facts and documents which could be made basis for grant of sanction to prosecute respondent No.2 and also pointed out that as per the judgments of this Court, detailed inquiry was not required to be made into the allegations, the concerned officers in the PMO kept the matter pending and then took the shelter of the fact that the CBI had registered the case and the investigation was pending. In our view, the officers in the PMO and the Ministry of Law and Justice, were duty bound to apprise respondent No.1 about seriousness of allegations made by the appellant and the judgments of this Court including the directions contained in paragraph 58(I) of the judgment in Vineet Narains case as also the guidelines framed by the CVC so as to enable him to take appropriate decision in the matter. By the very nature of the office held by him, respondent No. 1 is not expected to personally look into the minute details of each and every case placed before him and has to depend on his advisers and other officers. Unfortunately, those who were expected to give proper advice to respondent No. 1 and place full facts and legal position before him failed to do so. We have no doubt that if respondent No.1 had been apprised of the true factual and legal position regarding the representation made by the appellant, he would have surely taken appropriate decision and would not have allowed the matter to linger for a period of more than one year.
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Himadri Chemicals Industries Ltd Vs. Coal Tar Refining Company | first deal with the case of fraud pleaded by the appellant in their application for injunction. The particulars of fraud have been pleaded in paragraph 45 of the application for injunction filed by the appellant in the High Court. From a close scrutiny of the facts pleaded in the said paragraph of the application for injunction, in our view, it cannot be held that such facts have constituted fraud for which an order of injunction in the matter of encashment of Letter of Credit could be passed by the courts. The facts pleaded in paragraph 45 of the application for injunction would only show that although the respondent had agreed to remove the defects in the goods by saying that it shall take steps to reduce the ash content of the goods to 0.3 % before the payment date of the Letter of Credit as extended, but they deliberately and with ulterior motive had not fulfilled their intention to do so. It is not in dispute that the particulars of the fraud prima facie were restricted to 10,000 metric tones of the goods supplied by the respondent in respect of which documents were not negotiated by the appellant. The entire consignment which was admittedly shipped by M.V.Iran Takhti was 12,503 metric tones out of which 2503 metric tones were negotiated and payments released by the Central Bank of India. Admittedly, as noted herein above, a case of fraud was alleged only in respect of a part of the consignment of the second shipment. It has been rightly held by the High Court that this could not constitute fraud as fraud must be in respect of the whole consignment and not in respect of a part of the same. In this view of the matter, we are, therefore, in agreement with the High Court that the pleadings made relating to fraud in paragraph 45 of the application for injunction were not sufficient nor any strong prima facie case of fraud could be made out in the petition which would warrant a continuance of the order of status quo. 16. That apart, as noted herein earlier, in the matter of invocation of a Bank Guarantee or a Letter of Credit, it is not open for the bank to rely upon the terms of the underlying contract between the parties. 17. In view of the discussions made herein above and in view of the admitted fact that in respect of 2503 metric tones of goods out of 12503 metric tones of goods in the second consignment, documents were admittedly negotiated and payments were released and further in view of the communication dated 3rd October, 2006 by the appellant to the banker that it had agreed to accept the discrepancies raised in respect of the goods and also agreed to make payment of the same, we are not satisfied that a case of fraud even prima facie has been made out by the appellant for grant of injunction. It is difficult to conceive that the appellant having accepted a part of the second consignment and having directed to release payments in respect of the same, would be defrauded by the respondent in respect of the balance quantity of goods which had arrived at Calcutta in the second shipment. In any view of the matter, in our view, the defective quality of goods in respect of which an order of injunction of the encashment of the Letter of credit was sought could at all be a reasonable ground for grant of injunction as it was related to payment dated 29th May, 2006 which was the subject matter of the arbitration proceeding and the claim, if any, can be recovered in the said arbitration proceeding. 18. Let us now consider the other exception, namely, case where allowing encashment of an unconditional Bank Guarantee or a Letter of Credit would result in an irretrievable harm or injustice to one of the parties concerned. In our view, irretrievable injury was not caused to the appellant by a refusal to grant an order of injunction restraining the encashment of the Letter of Credit for two reasons :-(i) Exceptional circumstances have not been made out by the appellant which would make it impossible for the Guarantor to reimburse himself if he ultimately succeeds. Only a case of apprehension has been shown in the application for injunction to the extent that if ultimately, the application for injunction is allowed, it would be impossible to recover the amount encashed on the basis of the Letter of Credit because the respondent is a Foreign Company in Iran which has no assets in India. In our view, this cannot come within the second exception indicated above.(ii) Admittedly in this case, the appellant has already filed an Admiralty Suit No. 14 of 2006 in the original side of the Calcutta High Court claiming damages in respect of the same set of goods. In the said suit filed in the month of November 2006, the respondent was given liberty to furnish a Bank Guarantee for a sum of Rs. 21,86,68,540/- being the sum claimed by the appellant on account of damages to the credit of the said suit and a Bank Guarantee to the extent of this amount has already been furnished by the respondent. Such being the position, the question of irretrievable injury even prima facie which would lead to injustice and harm the appellant cannot at all be conceived of since the appellant has been duly protected by the furnishing of Bank Guarantee. In our view, only because the respondent has no assets in India would not lead us to hold that the appellant was entitled to an injunction on the ground that he would suffer an irretrievable injury. In this view of the matter, we echo the finding of the High Court in refusing to grant an order of injunction in favour of the appellant and hold that the High Court was fully justified in doing so. 19. For the reasons aforesaid, we | 0[ds]Let us now consider the other exception, namely, case where allowing encashment of an unconditional Bank Guarantee or a Letter of Credit would result in an irretrievable harm or injustice to one of the parties concerned. In our view, irretrievable injury was not caused to the appellant by a refusal to grant an order of injunction restraining the encashment of the Letter of Credit for two reasons :-(i) Exceptional circumstances have not been made out by the appellant which would make it impossible for the Guarantor to reimburse himself if he ultimately succeeds. Only a case of apprehension has been shown in the application for injunction to the extent that if ultimately, the application for injunction is allowed, it would be impossible to recover the amount encashed on the basis of the Letter of Credit because the respondent is a Foreign Company in Iran which has no assets in India. In our view, this cannot come within the second exception indicated above.(ii) Admittedly in this case, the appellant has already filed an Admiralty Suit No. 14 of 2006 in the original side of the Calcutta High Court claiming damages in respect of the same set of goods. In the said suit filed in the month of November 2006, the respondent was given liberty to furnish a Bank Guarantee for a sum of Rs. 21,86,68,540/- being the sum claimed by the appellant on account of damages to the credit of the said suit and a Bank Guarantee to the extent of this amount has already been furnished by the respondent. Such being the position, the question of irretrievable injury even prima facie which would lead to injustice and harm the appellant cannot at all be conceived of since the appellant has been duly protected by the furnishing of Bank Guarantee. In our view, only because the respondent has no assets in India would not lead us to hold that the appellant was entitled to an injunction on the ground that he would suffer an irretrievable injury. In this view of the matter, we echo the finding of the High Court in refusing to grant an order of injunction in favour of the appellant and hold that the High Court was fully justified in doing so. | 0 | 4,217 | 409 | ### 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:
first deal with the case of fraud pleaded by the appellant in their application for injunction. The particulars of fraud have been pleaded in paragraph 45 of the application for injunction filed by the appellant in the High Court. From a close scrutiny of the facts pleaded in the said paragraph of the application for injunction, in our view, it cannot be held that such facts have constituted fraud for which an order of injunction in the matter of encashment of Letter of Credit could be passed by the courts. The facts pleaded in paragraph 45 of the application for injunction would only show that although the respondent had agreed to remove the defects in the goods by saying that it shall take steps to reduce the ash content of the goods to 0.3 % before the payment date of the Letter of Credit as extended, but they deliberately and with ulterior motive had not fulfilled their intention to do so. It is not in dispute that the particulars of the fraud prima facie were restricted to 10,000 metric tones of the goods supplied by the respondent in respect of which documents were not negotiated by the appellant. The entire consignment which was admittedly shipped by M.V.Iran Takhti was 12,503 metric tones out of which 2503 metric tones were negotiated and payments released by the Central Bank of India. Admittedly, as noted herein above, a case of fraud was alleged only in respect of a part of the consignment of the second shipment. It has been rightly held by the High Court that this could not constitute fraud as fraud must be in respect of the whole consignment and not in respect of a part of the same. In this view of the matter, we are, therefore, in agreement with the High Court that the pleadings made relating to fraud in paragraph 45 of the application for injunction were not sufficient nor any strong prima facie case of fraud could be made out in the petition which would warrant a continuance of the order of status quo. 16. That apart, as noted herein earlier, in the matter of invocation of a Bank Guarantee or a Letter of Credit, it is not open for the bank to rely upon the terms of the underlying contract between the parties. 17. In view of the discussions made herein above and in view of the admitted fact that in respect of 2503 metric tones of goods out of 12503 metric tones of goods in the second consignment, documents were admittedly negotiated and payments were released and further in view of the communication dated 3rd October, 2006 by the appellant to the banker that it had agreed to accept the discrepancies raised in respect of the goods and also agreed to make payment of the same, we are not satisfied that a case of fraud even prima facie has been made out by the appellant for grant of injunction. It is difficult to conceive that the appellant having accepted a part of the second consignment and having directed to release payments in respect of the same, would be defrauded by the respondent in respect of the balance quantity of goods which had arrived at Calcutta in the second shipment. In any view of the matter, in our view, the defective quality of goods in respect of which an order of injunction of the encashment of the Letter of credit was sought could at all be a reasonable ground for grant of injunction as it was related to payment dated 29th May, 2006 which was the subject matter of the arbitration proceeding and the claim, if any, can be recovered in the said arbitration proceeding. 18. Let us now consider the other exception, namely, case where allowing encashment of an unconditional Bank Guarantee or a Letter of Credit would result in an irretrievable harm or injustice to one of the parties concerned. In our view, irretrievable injury was not caused to the appellant by a refusal to grant an order of injunction restraining the encashment of the Letter of Credit for two reasons :-(i) Exceptional circumstances have not been made out by the appellant which would make it impossible for the Guarantor to reimburse himself if he ultimately succeeds. Only a case of apprehension has been shown in the application for injunction to the extent that if ultimately, the application for injunction is allowed, it would be impossible to recover the amount encashed on the basis of the Letter of Credit because the respondent is a Foreign Company in Iran which has no assets in India. In our view, this cannot come within the second exception indicated above.(ii) Admittedly in this case, the appellant has already filed an Admiralty Suit No. 14 of 2006 in the original side of the Calcutta High Court claiming damages in respect of the same set of goods. In the said suit filed in the month of November 2006, the respondent was given liberty to furnish a Bank Guarantee for a sum of Rs. 21,86,68,540/- being the sum claimed by the appellant on account of damages to the credit of the said suit and a Bank Guarantee to the extent of this amount has already been furnished by the respondent. Such being the position, the question of irretrievable injury even prima facie which would lead to injustice and harm the appellant cannot at all be conceived of since the appellant has been duly protected by the furnishing of Bank Guarantee. In our view, only because the respondent has no assets in India would not lead us to hold that the appellant was entitled to an injunction on the ground that he would suffer an irretrievable injury. In this view of the matter, we echo the finding of the High Court in refusing to grant an order of injunction in favour of the appellant and hold that the High Court was fully justified in doing so. 19. For the reasons aforesaid, we
### Response:
0
### Explanation:
Let us now consider the other exception, namely, case where allowing encashment of an unconditional Bank Guarantee or a Letter of Credit would result in an irretrievable harm or injustice to one of the parties concerned. In our view, irretrievable injury was not caused to the appellant by a refusal to grant an order of injunction restraining the encashment of the Letter of Credit for two reasons :-(i) Exceptional circumstances have not been made out by the appellant which would make it impossible for the Guarantor to reimburse himself if he ultimately succeeds. Only a case of apprehension has been shown in the application for injunction to the extent that if ultimately, the application for injunction is allowed, it would be impossible to recover the amount encashed on the basis of the Letter of Credit because the respondent is a Foreign Company in Iran which has no assets in India. In our view, this cannot come within the second exception indicated above.(ii) Admittedly in this case, the appellant has already filed an Admiralty Suit No. 14 of 2006 in the original side of the Calcutta High Court claiming damages in respect of the same set of goods. In the said suit filed in the month of November 2006, the respondent was given liberty to furnish a Bank Guarantee for a sum of Rs. 21,86,68,540/- being the sum claimed by the appellant on account of damages to the credit of the said suit and a Bank Guarantee to the extent of this amount has already been furnished by the respondent. Such being the position, the question of irretrievable injury even prima facie which would lead to injustice and harm the appellant cannot at all be conceived of since the appellant has been duly protected by the furnishing of Bank Guarantee. In our view, only because the respondent has no assets in India would not lead us to hold that the appellant was entitled to an injunction on the ground that he would suffer an irretrievable injury. In this view of the matter, we echo the finding of the High Court in refusing to grant an order of injunction in favour of the appellant and hold that the High Court was fully justified in doing so.
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State of Madras Vs. Rev. Brother Joseph | Mathew, J. 1. These two appeals, by certificate, are directed against the judgment and decree of the High Court of Madras in A S. Nos. 63 and 78 of 1959 dated April 10, 1962. 2. The appellant, the Government of Madras, acquired 9 acres and 86 cents of land in Tirunelveli District as it was needed for reserve area in Block III of Manimuthar Project. The notification under Section 4 ( 1 ) of the Land Acquisition Act was published on March 7, 1956. 3. The area of the land with which we are concerned in this appeal is one acre and 59 cents comprised of 3 topes, of coconuts and oranges. 4. The Land Acquisition Officer, by his award, gave a total compensation of Rs. 28,572-15-6 inclusive of solatium. The method adopted by him for valuing coconut and orange topes was to capitalize the net income from these topes at 20 years purchase. 5. Dissatisfied with the award, the respondent moved for reference under Section 18 of the Land Acquisition Act and the case was referred to the Subordinate Judge, Tirunelveli. 6. The learned Subordinate Judge increased the estimated yield from the coconut and orange trees as well as the price of the yield but capitalized the net income at 20 years purchase. Against this decision, the State of Madras filed A. S. No. 63 of 1959, while the respondent filed A. S. No. 78 of 1959 claiming a further enhancement. 7. The High Court, by the common judgment under appeal, allowed the appeals in part and dismissed them in other respects. As regards the coconut and orange topes, the High Court held that capitalization of the net income at 20 years purchase was a fair method for arriving at their market value. 8. In this appeal, the only point argued by counsel was that the High Court went wrong in capitalizing the net income of the topes at 20 years purchase. Counsel relied on the decision of the Madras High Court in Shanmuga Velayuda Mudaliar Collector of Tanjore, AIR 1926 Mad 945 (2) where it was held that the proper method to find out the market value of coconut garden would be to capitalize the net income from the garden at 10 years purchase and said that there was no reason for the High Court to depart from the principle there laid down. 9. It may be noted that no reason was given in that ruling why capitalization of the net income should be at 10 years purchase. All that the Court said was:"In RajammaI v. Head Quarters Deputy Collector Vellore, 25 Ind Cas 393 =(AIR 1915 Mad 356 (2) ) a Bench of this Court estimated the value of a tope of trees at 20 years annual rental; but those were mango trees which as stated by the learned Judges, are long lived and yield produce for a number of years."10. There was no discussion in the judgment of the principle on the basis of which such a mode of calculation was adopted. 11. In Kompalli Nageshwara Rao v. Special Deputy Collector, Land Acquisition, Bapatla, AIR l959 Andh Pra 52 at p. 62 the Court said that the Approved method for valuing orchards is to capitalize their net income at a number of years purchase which has to be fixed with reference to the nature of the trees and other circumstances and capitalized the net income at 15 years purchase for finding out the market value of the coconut garden and the orange orchard in question in that case. In Elias M. Cohen v. Secy. of State. AIR 1918 Pat 625 (2) the net income from an orchard was capitalized at 15 years purchase to find out its market value. 12. In this case, the Land Acquisition Officer found in his award that all the fruit bearing trees will yield for more than 20 years. That was the reason which weighed with him to capitalize the net income of these topes at 20 years purchase to find out their market value. We do not think that the learned Subordinate Judge and the High Court went wrong in accepting this estimate of the average yielding life of coconut and orange trees. Therefore we do not think that the capitalization of the net yield from these topes at 20 years purchase was not a fair method to arrive at the market value of these topes. We are not satisfied that the method of valuation adopted for finding out the market value of the topes was, in the circumstances, in any way unreasonable. | 0[ds]9. It may be noted that no reason was given in that ruling why capitalization of the net income should be at 10 years purchase. All that the Court saidRajammaI v. Head Quarters Deputy Collector Vellore, 25 Ind Cas 393 =(AIR 1915 Mad 356 (2) ) a Bench of this Court estimated the value of a tope of trees at 20 years annual rental; but those were mango trees which as stated by the learned Judges, are long lived and yield produce for a number of years.There was no discussion in the judgment of the principle on the basis of which such a mode of calculation was adopted.In this case, the Land Acquisition Officer found in his award that all the fruit bearing trees will yield for more than 20 years. That was the reason which weighed with him to capitalize the net income of these topes at 20 years purchase to find out their market value. We do not think that the learned Subordinate Judge and the High Court went wrong in accepting this estimate of the average yielding life of coconut and orange trees. Therefore we do not think that the capitalization of the net yield from these topes at 20 years purchase was not a fair method to arrive at the market value of these topes. We are not satisfied that the method of valuation adopted for finding out the market value of the topes was, in the circumstances, in any way unreasonable. | 0 | 845 | 267 | ### 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:
Mathew, J. 1. These two appeals, by certificate, are directed against the judgment and decree of the High Court of Madras in A S. Nos. 63 and 78 of 1959 dated April 10, 1962. 2. The appellant, the Government of Madras, acquired 9 acres and 86 cents of land in Tirunelveli District as it was needed for reserve area in Block III of Manimuthar Project. The notification under Section 4 ( 1 ) of the Land Acquisition Act was published on March 7, 1956. 3. The area of the land with which we are concerned in this appeal is one acre and 59 cents comprised of 3 topes, of coconuts and oranges. 4. The Land Acquisition Officer, by his award, gave a total compensation of Rs. 28,572-15-6 inclusive of solatium. The method adopted by him for valuing coconut and orange topes was to capitalize the net income from these topes at 20 years purchase. 5. Dissatisfied with the award, the respondent moved for reference under Section 18 of the Land Acquisition Act and the case was referred to the Subordinate Judge, Tirunelveli. 6. The learned Subordinate Judge increased the estimated yield from the coconut and orange trees as well as the price of the yield but capitalized the net income at 20 years purchase. Against this decision, the State of Madras filed A. S. No. 63 of 1959, while the respondent filed A. S. No. 78 of 1959 claiming a further enhancement. 7. The High Court, by the common judgment under appeal, allowed the appeals in part and dismissed them in other respects. As regards the coconut and orange topes, the High Court held that capitalization of the net income at 20 years purchase was a fair method for arriving at their market value. 8. In this appeal, the only point argued by counsel was that the High Court went wrong in capitalizing the net income of the topes at 20 years purchase. Counsel relied on the decision of the Madras High Court in Shanmuga Velayuda Mudaliar Collector of Tanjore, AIR 1926 Mad 945 (2) where it was held that the proper method to find out the market value of coconut garden would be to capitalize the net income from the garden at 10 years purchase and said that there was no reason for the High Court to depart from the principle there laid down. 9. It may be noted that no reason was given in that ruling why capitalization of the net income should be at 10 years purchase. All that the Court said was:"In RajammaI v. Head Quarters Deputy Collector Vellore, 25 Ind Cas 393 =(AIR 1915 Mad 356 (2) ) a Bench of this Court estimated the value of a tope of trees at 20 years annual rental; but those were mango trees which as stated by the learned Judges, are long lived and yield produce for a number of years."10. There was no discussion in the judgment of the principle on the basis of which such a mode of calculation was adopted. 11. In Kompalli Nageshwara Rao v. Special Deputy Collector, Land Acquisition, Bapatla, AIR l959 Andh Pra 52 at p. 62 the Court said that the Approved method for valuing orchards is to capitalize their net income at a number of years purchase which has to be fixed with reference to the nature of the trees and other circumstances and capitalized the net income at 15 years purchase for finding out the market value of the coconut garden and the orange orchard in question in that case. In Elias M. Cohen v. Secy. of State. AIR 1918 Pat 625 (2) the net income from an orchard was capitalized at 15 years purchase to find out its market value. 12. In this case, the Land Acquisition Officer found in his award that all the fruit bearing trees will yield for more than 20 years. That was the reason which weighed with him to capitalize the net income of these topes at 20 years purchase to find out their market value. We do not think that the learned Subordinate Judge and the High Court went wrong in accepting this estimate of the average yielding life of coconut and orange trees. Therefore we do not think that the capitalization of the net yield from these topes at 20 years purchase was not a fair method to arrive at the market value of these topes. We are not satisfied that the method of valuation adopted for finding out the market value of the topes was, in the circumstances, in any way unreasonable.
### Response:
0
### Explanation:
9. It may be noted that no reason was given in that ruling why capitalization of the net income should be at 10 years purchase. All that the Court saidRajammaI v. Head Quarters Deputy Collector Vellore, 25 Ind Cas 393 =(AIR 1915 Mad 356 (2) ) a Bench of this Court estimated the value of a tope of trees at 20 years annual rental; but those were mango trees which as stated by the learned Judges, are long lived and yield produce for a number of years.There was no discussion in the judgment of the principle on the basis of which such a mode of calculation was adopted.In this case, the Land Acquisition Officer found in his award that all the fruit bearing trees will yield for more than 20 years. That was the reason which weighed with him to capitalize the net income of these topes at 20 years purchase to find out their market value. We do not think that the learned Subordinate Judge and the High Court went wrong in accepting this estimate of the average yielding life of coconut and orange trees. Therefore we do not think that the capitalization of the net yield from these topes at 20 years purchase was not a fair method to arrive at the market value of these topes. We are not satisfied that the method of valuation adopted for finding out the market value of the topes was, in the circumstances, in any way unreasonable.
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M.K. Palaniappa Chettiar and Another Vs. A. Pennuswami Pillai | that a very small portion of the building was being used for residential purposes and that did not amount to use of the building of a purpose contrary to that for which it was let out. Thereafter, the landlord moved a revision before the District Court under Section 25(1)(b)(II) of the Act. The District court affirmed the finding and decision of the appellate authority. The landlord proceeded to file a revision in the High Court of Madras against this decision under Section 115 of the Code of Civil Procedure. The High Court set aside the decision of the subordinate courts and granted a decree for eviction, holding that the building had been used for a purpose other than that for which it had been let out; and it is against this decision that the tenant and his nephew, who was also impleaded with him as an opposite party, have come up to this Court by special leave.3. The first point urged on behalf of the tenant is that there was no error of jurisdiction in the decision of the Rent Controller, the appellate authority, or the District Court and consequently, the High Court did not have jurisdiction to interfere in exercise of its powers under Section 115 of the code of Civil Procedure. The High court interred under Section 115, C.P.C., on the view that, on the facts found and on the pleadings, the suit for eviction should have been decreed. The view taken was that the tenant never took up the plea that, even if a part of the premises had been used for residential purpose, it did not amount to use against the terms of the lease, so that this plea was not open to be considered by the lower courts. The Pleas that was raised by the tenant was that the lease itself was for the dual purpose of residence as well as trade; and that plea having failed, the application for eviction should have been allowed. On the face of it, this order made by the High Court does not proceed on the basis that any error of jurisdiction was committed by the lower courts. The court had the jurisdiction either to grant the application or to reject it, depending on whether the landlord succeeded in proving that the tenant had used the building for a purpose other than the one for which it was let out, or failed to do so. Even if the finding by the lower courts was incorrect, it would be an error committed by those courts in the decision itself in proper exercise of their jurisdiction. It could not be held that, in giving such a decision, the courts exercised jurisdiction not vested in them. At the highest, the only criticism that could be levelled was that their decision suffered from an error of law; but, however gross an error of law committed by those courts, the High Court could not interfere under Section 115 of the code of Civil procedure, specially when there was no procedural error committed by those courts. This principle was clearly laid down by this Court in Keshardeo Chamria v. Radha Kissen Chamria and Others (1953 SCR 136 ) and vice versa. The same principle was affirmed in Pandurang Dhoni Chougule v. Maruti Hari Jadhav ((1966) 1 SCR 102 ). The errors committed by the courts do not relate to any question of fact which would determine their jurisdiction to deal with the proceedings before them. The error was purely in giving the decision in a case in which they had jurisdiction to decide the dispute that was raised before them, In these circumstances, it is clear that the High Court was wrong in interfering with the setting aside the concurrent findings of the three lower courts, acting under Section 115 of the Code of Civil Procedure.4. Even of the alternative point pressed before us that the High Court itself took an incorrect view, we are inclined to accept the submission made on behalf of the tenant. The finding recorded by the revisional court acting under Section 25(1)(b) (ii) of the Act was to the effect that the portion of the building, which was being used by the tenant for cooking, was very negligible, while the rest of the building was being continued to be used for the purpose for which it was taken on lease. On this finding, the lower courts were quite correct in holding that there had been no such conversion in breach of the terms of the lease as would render the tenant liable to eviction. The High Court interfered because, in its opinion, the lower courts were not competent to decide the case on this basis as no plea had been taken on behalf of the tenant, that even if the lease was for trade purpose only and a part of the building had been used for residence, it did not amount to use in contravention of the terms of the lease. In taking this view, the High Court lost sight of the fact that, in this case, the landlord came as the applicant for eviction of the tenant and the burden was on the landlord to prove all the ingredients which entitled him to seek eviction. It was, therefore, for the landlord to establish, independently of the plea of the tenant, that the tenants use was in breach of the terms of the lease. When the landlord failed to show that any substantial part of the building was being used for a purpose different from the purpose for which the building had been let out, the claim of the landlord had to fail irrespective of the plea taken by the tenant to resist the application. On this ground also, the High Court had not justification to interfere.5. Some other grounds were also urged on behalf of the tenant but we need not deal with them in view of the fact that the tenant succeed for the two reasons mentioned above. | 1[ds]3. The first point urged on behalf of the tenant is that there was no error of jurisdiction in the decision of the Rent Controller, the appellate authority, or the District Court and consequently, the High Court did not have jurisdiction to interfere in exercise of its powers under Section 115 of the code of Civil Procedure.The High court interred under Section 115, C.P.C., on the view that, on the facts found and on the pleadings, the suit for eviction should have been decreed. The view taken was that the tenant never took up the plea that, even if a part of the premises had been used for residential purpose, it did not amount to use against the terms of the lease, so that this plea was not open to be considered by the lower courts. The Pleas that was raised by the tenant was that the lease itself was for the dual purpose of residence as well as trade; and that plea having failed, the application for eviction should have been allowed. On the face of it, this order made by the High Court does not proceed on the basis that any error of jurisdiction was committed by the lower courts. The court had the jurisdiction either to grant the application or to reject it, depending on whether the landlord succeeded in proving that the tenant had used the building for a purpose other than the one for which it was let out, or failed to do so. Even if the finding by the lower courts was incorrect, it would be an error committed by those courts in the decision itself in proper exercise of their jurisdiction. It could not be held that, in giving such a decision, the courts exercised jurisdiction not vested in them. At the highest, the only criticism that could be levelled was that their decision suffered from an error of law; but, however gross an error of law committed by those courts, the High Court could not interfere under Section 115 of the code of Civil procedure, specially when there was no procedural error committed by those courts. This principle was clearly laid down by this Court in Keshardeo Chamria v. Radha Kissen Chamria and Others (1953 SCR 136 ) and vice versa. The same principle was affirmed in Pandurang Dhoni Chougule v. Maruti Hari Jadhav ((1966) 1 SCR 102 ). The errors committed by the courts do not relate to any question of fact which would determine their jurisdiction to deal with the proceedings before them. The error was purely in giving the decision in a case in which they had jurisdiction to decide the dispute that was raised before them, In these circumstances, it is clear that the High Court was wrong in interfering with the setting aside the concurrent findings of the three lower courts, acting under Section 115 of the Code of Civil Procedure.4. Even of the alternative point pressed before us that the High Court itself took an incorrect view, we are inclined to accept the submission made on behalf of the tenant. The finding recorded by the revisional court acting under Section 25(1)(b) (ii) of the Act was to the effect that the portion of the building, which was being used by the tenant for cooking, was very negligible, while the rest of the building was being continued to be used for the purpose for which it was taken on lease. On this finding, the lower courts were quite correct in holding that there had been no such conversion in breach of the terms of the lease as would render the tenant liable to eviction. The High Court interfered because, in its opinion, the lower courts were not competent to decide the case on this basis as no plea had been taken on behalf of the tenant, that even if the lease was for trade purpose only and a part of the building had been used for residence, it did not amount to use in contravention of the terms of the lease. In taking this view, the High Court lost sight of the fact that, in this case, the landlord came as the applicant for eviction of the tenant and the burden was on the landlord to prove all the ingredients which entitled him to seek eviction. It was, therefore, for the landlord to establish, independently of the plea of the tenant, that the tenants use was in breach of the terms of the lease. When the landlord failed to show that any substantial part of the building was being used for a purpose different from the purpose for which the building had been let out, the claim of the landlord had to fail irrespective of the plea taken by the tenant to resist the application. On this ground also, the High Court had not justification to interfere.5. Some other grounds were also urged on behalf of the tenant but we need not deal with them in view of the fact that the tenant succeed for the two reasons mentioned above | 1 | 1,389 | 924 | ### 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:
that a very small portion of the building was being used for residential purposes and that did not amount to use of the building of a purpose contrary to that for which it was let out. Thereafter, the landlord moved a revision before the District Court under Section 25(1)(b)(II) of the Act. The District court affirmed the finding and decision of the appellate authority. The landlord proceeded to file a revision in the High Court of Madras against this decision under Section 115 of the Code of Civil Procedure. The High Court set aside the decision of the subordinate courts and granted a decree for eviction, holding that the building had been used for a purpose other than that for which it had been let out; and it is against this decision that the tenant and his nephew, who was also impleaded with him as an opposite party, have come up to this Court by special leave.3. The first point urged on behalf of the tenant is that there was no error of jurisdiction in the decision of the Rent Controller, the appellate authority, or the District Court and consequently, the High Court did not have jurisdiction to interfere in exercise of its powers under Section 115 of the code of Civil Procedure. The High court interred under Section 115, C.P.C., on the view that, on the facts found and on the pleadings, the suit for eviction should have been decreed. The view taken was that the tenant never took up the plea that, even if a part of the premises had been used for residential purpose, it did not amount to use against the terms of the lease, so that this plea was not open to be considered by the lower courts. The Pleas that was raised by the tenant was that the lease itself was for the dual purpose of residence as well as trade; and that plea having failed, the application for eviction should have been allowed. On the face of it, this order made by the High Court does not proceed on the basis that any error of jurisdiction was committed by the lower courts. The court had the jurisdiction either to grant the application or to reject it, depending on whether the landlord succeeded in proving that the tenant had used the building for a purpose other than the one for which it was let out, or failed to do so. Even if the finding by the lower courts was incorrect, it would be an error committed by those courts in the decision itself in proper exercise of their jurisdiction. It could not be held that, in giving such a decision, the courts exercised jurisdiction not vested in them. At the highest, the only criticism that could be levelled was that their decision suffered from an error of law; but, however gross an error of law committed by those courts, the High Court could not interfere under Section 115 of the code of Civil procedure, specially when there was no procedural error committed by those courts. This principle was clearly laid down by this Court in Keshardeo Chamria v. Radha Kissen Chamria and Others (1953 SCR 136 ) and vice versa. The same principle was affirmed in Pandurang Dhoni Chougule v. Maruti Hari Jadhav ((1966) 1 SCR 102 ). The errors committed by the courts do not relate to any question of fact which would determine their jurisdiction to deal with the proceedings before them. The error was purely in giving the decision in a case in which they had jurisdiction to decide the dispute that was raised before them, In these circumstances, it is clear that the High Court was wrong in interfering with the setting aside the concurrent findings of the three lower courts, acting under Section 115 of the Code of Civil Procedure.4. Even of the alternative point pressed before us that the High Court itself took an incorrect view, we are inclined to accept the submission made on behalf of the tenant. The finding recorded by the revisional court acting under Section 25(1)(b) (ii) of the Act was to the effect that the portion of the building, which was being used by the tenant for cooking, was very negligible, while the rest of the building was being continued to be used for the purpose for which it was taken on lease. On this finding, the lower courts were quite correct in holding that there had been no such conversion in breach of the terms of the lease as would render the tenant liable to eviction. The High Court interfered because, in its opinion, the lower courts were not competent to decide the case on this basis as no plea had been taken on behalf of the tenant, that even if the lease was for trade purpose only and a part of the building had been used for residence, it did not amount to use in contravention of the terms of the lease. In taking this view, the High Court lost sight of the fact that, in this case, the landlord came as the applicant for eviction of the tenant and the burden was on the landlord to prove all the ingredients which entitled him to seek eviction. It was, therefore, for the landlord to establish, independently of the plea of the tenant, that the tenants use was in breach of the terms of the lease. When the landlord failed to show that any substantial part of the building was being used for a purpose different from the purpose for which the building had been let out, the claim of the landlord had to fail irrespective of the plea taken by the tenant to resist the application. On this ground also, the High Court had not justification to interfere.5. Some other grounds were also urged on behalf of the tenant but we need not deal with them in view of the fact that the tenant succeed for the two reasons mentioned above.
### Response:
1
### Explanation:
3. The first point urged on behalf of the tenant is that there was no error of jurisdiction in the decision of the Rent Controller, the appellate authority, or the District Court and consequently, the High Court did not have jurisdiction to interfere in exercise of its powers under Section 115 of the code of Civil Procedure.The High court interred under Section 115, C.P.C., on the view that, on the facts found and on the pleadings, the suit for eviction should have been decreed. The view taken was that the tenant never took up the plea that, even if a part of the premises had been used for residential purpose, it did not amount to use against the terms of the lease, so that this plea was not open to be considered by the lower courts. The Pleas that was raised by the tenant was that the lease itself was for the dual purpose of residence as well as trade; and that plea having failed, the application for eviction should have been allowed. On the face of it, this order made by the High Court does not proceed on the basis that any error of jurisdiction was committed by the lower courts. The court had the jurisdiction either to grant the application or to reject it, depending on whether the landlord succeeded in proving that the tenant had used the building for a purpose other than the one for which it was let out, or failed to do so. Even if the finding by the lower courts was incorrect, it would be an error committed by those courts in the decision itself in proper exercise of their jurisdiction. It could not be held that, in giving such a decision, the courts exercised jurisdiction not vested in them. At the highest, the only criticism that could be levelled was that their decision suffered from an error of law; but, however gross an error of law committed by those courts, the High Court could not interfere under Section 115 of the code of Civil procedure, specially when there was no procedural error committed by those courts. This principle was clearly laid down by this Court in Keshardeo Chamria v. Radha Kissen Chamria and Others (1953 SCR 136 ) and vice versa. The same principle was affirmed in Pandurang Dhoni Chougule v. Maruti Hari Jadhav ((1966) 1 SCR 102 ). The errors committed by the courts do not relate to any question of fact which would determine their jurisdiction to deal with the proceedings before them. The error was purely in giving the decision in a case in which they had jurisdiction to decide the dispute that was raised before them, In these circumstances, it is clear that the High Court was wrong in interfering with the setting aside the concurrent findings of the three lower courts, acting under Section 115 of the Code of Civil Procedure.4. Even of the alternative point pressed before us that the High Court itself took an incorrect view, we are inclined to accept the submission made on behalf of the tenant. The finding recorded by the revisional court acting under Section 25(1)(b) (ii) of the Act was to the effect that the portion of the building, which was being used by the tenant for cooking, was very negligible, while the rest of the building was being continued to be used for the purpose for which it was taken on lease. On this finding, the lower courts were quite correct in holding that there had been no such conversion in breach of the terms of the lease as would render the tenant liable to eviction. The High Court interfered because, in its opinion, the lower courts were not competent to decide the case on this basis as no plea had been taken on behalf of the tenant, that even if the lease was for trade purpose only and a part of the building had been used for residence, it did not amount to use in contravention of the terms of the lease. In taking this view, the High Court lost sight of the fact that, in this case, the landlord came as the applicant for eviction of the tenant and the burden was on the landlord to prove all the ingredients which entitled him to seek eviction. It was, therefore, for the landlord to establish, independently of the plea of the tenant, that the tenants use was in breach of the terms of the lease. When the landlord failed to show that any substantial part of the building was being used for a purpose different from the purpose for which the building had been let out, the claim of the landlord had to fail irrespective of the plea taken by the tenant to resist the application. On this ground also, the High Court had not justification to interfere.5. Some other grounds were also urged on behalf of the tenant but we need not deal with them in view of the fact that the tenant succeed for the two reasons mentioned above
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State Of Assam And Another Vs. Deva Prasad Barua & Another | (2) of the Act on the respondents and therefore the reasoning of the High Court was based on an erroneous assumption that no such notice had been served. According to him in the return filed in the High Court it had been clearly asserted that such notices had been issued followed by reminders. No counter-affidavit, however, had been filed by the respondents in the High Court contradicting the statement in the return. Counsel further points out that the statement in the judgment of the High Court "but it is not disputed that the notices under Section 19 (2) of the Act had not, in fact, been serve on the petitioners", is based on some misunderstanding or misapprehension. The counsel for the appellant did not make any concession on the point before the High Court and at the earliest opportunity, in the petition which was filed for leave under Article 133 of the Constitution, this matter was raised and the same assertions which were made in the return were reiterated. It seems to us that it is futile to go into this question because (a) it is substantially a question of fact and (b) the present appeal can be decided on another ground which arises out of the second contention raised before us. On the admitted fact that the general notice under Section 19 (1) was published and that a return was filed by the respondents in respect of each of the two assessment years in question it is not possible to see how Section 30 would become applicable at all. Sub-section (3) of Section 19 says in categorical terms that if any person has not furnished a return within the time allowed by or under sub-section (1) or sub-section (2) he may furnish a return at any time before the assessment is made and any return so made shall be deemed to be made in due time under the section . In The Commissioner of Income-tax Bombay v. Ranchhodddas Karsondas, Bombay, (1960) 1 SCR 114 = (AIR 1959 SC 1154 ) a public notice under Section 22 (1) of the Income-tax Act was published on May 1, 1945. On January 5, 1950 the assessee submitted a voluntary return showing an income of Rs. 1,935 for the assessment year 1945-46 and added a footnote to his return that his wife had sold her old ornaments and deposited a sum of Rs. 59,026 with some syndicate in which he was a partner. The Income-tax Officer ignored the voluntary return and in February 1950 issued a notice under Section 34 (1) of that Act pursuant to which the assessee submitted a return in March, 1950. The Income-tax Officer made the assessment in February 1951 including the sum of Rs. 59,026 in the total income of the assessee. The assessee contended that the assessment was invalid as it was completed more than four years after the end of the assessment year in violation of Sec. 34 (1) (b). The department contended that the voluntary return was not return as it did not disclose any taxable income and the assessment was valid under the proviso to Section 34 (3). It was held that the voluntary return filed by the assessee even though it did not disclose any taxable income was a good return. As such no question arose under Section 34 (1) of income escaping assessment and the Income-tax Officer was not justified in issuing a notice under Section 34 (1) of The assessment which was therefore made purusant to the notice under that Section was barred by time, having been made beyond the period prescribed.The principle which has been settled by this decision is that where a voluntary return has been filed pursuant to a general notice even after the expiry of the period mentioned in that notice, the Income-tax Officer must proceed to assess the income by taking up that return. He cannot ignore that return and save on the assessee a notice under the provisions relating to escaped income which was Section 34 in the Income-tax Act.This view also finds support from the decision of this Court in Commissioner of Income-tax, Madras v. S. Raman Chettiar, (1965) 1 SCR 883 = (AIR 1965 SC 1031 ) in which it was laid down, inter alia that Section 22 (3) of the Income-tax Act 1922 permitted an assessee to furnish a return at any time before the assessment was made, namely, before the time mentioned in Section 34 (3) of that Act. In the present case it is not disputed and cannot indeed be disputed that if the words "at any time" in sub-section (3) of Section 19 of the Act have not to be limited to the year of assessment as has been contended by the learned counsel for the respondents, the present case would be governed by the principles laid down by this Court in the above decisions. It has been urged that the words "at any time" should be given a limited meaning and should be confined to the year of assessment, namely, that the return should be made at any time within the year of assessment and not later in which case sub-section (3) would not apply and the provision of Sec. 30 would be at once attracted.This contention has only to be stated to be rejected. In the first place if sub-section (3) has to be read in the manner suggested it would become ambiguous and almost unintelligible. Secondly according to the ordinary canons of interpretation the words employed must be given their proper and plain meaning. Moreover Section 19 is in pari material with Section 22 of the Income-tax Act and the law which has been laid down by this Court, which interpreting the provisions of that Section must govern the construction of the provisions of Section 19 as well.The High Court in giving the reasons on which the petitions were allowed was not alive to all these matters and the view taken by it is clearly unsustainable.6. | 1[ds]The counsel for the appellant did not make any concession on the point before the High Court and at the earliest opportunity, in the petition which was filed for leave under Article 133 of the Constitution, this matter was raised and the same assertions which were made in the return were reiterated. It seems to us that it is futile to go into this question because (a) it is substantially a question of fact and (b) the present appeal can be decided on another ground which arises out of the second contention raised before us. On the admitted fact that the general notice under Section 19 (1) was published and that a return was filed by the respondents in respect of each of the two assessment years in question it is not possible to see how Section 30 would become applicable at all. Sub-section (3) of Section 19 says in categorical terms that if any person has not furnished a return within the time allowed by or under sub-section (1) or sub-section (2) he may furnish a return at any time before the assessment is made and any return so made shall be deemed to be made in due time under thethe present case it is not disputed and cannot indeed be disputed that if the words "at any time" in sub-section (3) of Section 19 of the Act have not to be limited to the year of assessment as has been contended by the learned counsel for the respondents, the present case would be governed by the principles laid down by this Court in the above decisions.It has been urged that the words "at any time" should be given a limited meaning and should be confined to the year of assessment, namely, that the return should be made at any time within the year of assessment and not later in which case) would not apply and the provision of Sec. 30 would be at oncecontention has only to be stated to be rejected. In the first place if sub-section (3) has to be read in the manner suggested it would become ambiguous and almost unintelligible. Secondly according to the ordinary canons of interpretation the words employed must be given their proper and plain meaning. Moreover Section 19 is in pari material with Section 22 of the Income-tax Act and the law which has been laid down by this Court, which interpreting the provisions of that Section must govern the construction of the provisions of Section 19 as well.The High Court in giving the reasons on which the petitions were allowed was not alive to all these matters and the view taken by it is clearly unsustainable. | 1 | 2,247 | 487 | ### Instruction:
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(2) of the Act on the respondents and therefore the reasoning of the High Court was based on an erroneous assumption that no such notice had been served. According to him in the return filed in the High Court it had been clearly asserted that such notices had been issued followed by reminders. No counter-affidavit, however, had been filed by the respondents in the High Court contradicting the statement in the return. Counsel further points out that the statement in the judgment of the High Court "but it is not disputed that the notices under Section 19 (2) of the Act had not, in fact, been serve on the petitioners", is based on some misunderstanding or misapprehension. The counsel for the appellant did not make any concession on the point before the High Court and at the earliest opportunity, in the petition which was filed for leave under Article 133 of the Constitution, this matter was raised and the same assertions which were made in the return were reiterated. It seems to us that it is futile to go into this question because (a) it is substantially a question of fact and (b) the present appeal can be decided on another ground which arises out of the second contention raised before us. On the admitted fact that the general notice under Section 19 (1) was published and that a return was filed by the respondents in respect of each of the two assessment years in question it is not possible to see how Section 30 would become applicable at all. Sub-section (3) of Section 19 says in categorical terms that if any person has not furnished a return within the time allowed by or under sub-section (1) or sub-section (2) he may furnish a return at any time before the assessment is made and any return so made shall be deemed to be made in due time under the section . In The Commissioner of Income-tax Bombay v. Ranchhodddas Karsondas, Bombay, (1960) 1 SCR 114 = (AIR 1959 SC 1154 ) a public notice under Section 22 (1) of the Income-tax Act was published on May 1, 1945. On January 5, 1950 the assessee submitted a voluntary return showing an income of Rs. 1,935 for the assessment year 1945-46 and added a footnote to his return that his wife had sold her old ornaments and deposited a sum of Rs. 59,026 with some syndicate in which he was a partner. The Income-tax Officer ignored the voluntary return and in February 1950 issued a notice under Section 34 (1) of that Act pursuant to which the assessee submitted a return in March, 1950. The Income-tax Officer made the assessment in February 1951 including the sum of Rs. 59,026 in the total income of the assessee. The assessee contended that the assessment was invalid as it was completed more than four years after the end of the assessment year in violation of Sec. 34 (1) (b). The department contended that the voluntary return was not return as it did not disclose any taxable income and the assessment was valid under the proviso to Section 34 (3). It was held that the voluntary return filed by the assessee even though it did not disclose any taxable income was a good return. As such no question arose under Section 34 (1) of income escaping assessment and the Income-tax Officer was not justified in issuing a notice under Section 34 (1) of The assessment which was therefore made purusant to the notice under that Section was barred by time, having been made beyond the period prescribed.The principle which has been settled by this decision is that where a voluntary return has been filed pursuant to a general notice even after the expiry of the period mentioned in that notice, the Income-tax Officer must proceed to assess the income by taking up that return. He cannot ignore that return and save on the assessee a notice under the provisions relating to escaped income which was Section 34 in the Income-tax Act.This view also finds support from the decision of this Court in Commissioner of Income-tax, Madras v. S. Raman Chettiar, (1965) 1 SCR 883 = (AIR 1965 SC 1031 ) in which it was laid down, inter alia that Section 22 (3) of the Income-tax Act 1922 permitted an assessee to furnish a return at any time before the assessment was made, namely, before the time mentioned in Section 34 (3) of that Act. In the present case it is not disputed and cannot indeed be disputed that if the words "at any time" in sub-section (3) of Section 19 of the Act have not to be limited to the year of assessment as has been contended by the learned counsel for the respondents, the present case would be governed by the principles laid down by this Court in the above decisions. It has been urged that the words "at any time" should be given a limited meaning and should be confined to the year of assessment, namely, that the return should be made at any time within the year of assessment and not later in which case sub-section (3) would not apply and the provision of Sec. 30 would be at once attracted.This contention has only to be stated to be rejected. In the first place if sub-section (3) has to be read in the manner suggested it would become ambiguous and almost unintelligible. Secondly according to the ordinary canons of interpretation the words employed must be given their proper and plain meaning. Moreover Section 19 is in pari material with Section 22 of the Income-tax Act and the law which has been laid down by this Court, which interpreting the provisions of that Section must govern the construction of the provisions of Section 19 as well.The High Court in giving the reasons on which the petitions were allowed was not alive to all these matters and the view taken by it is clearly unsustainable.6.
### Response:
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The counsel for the appellant did not make any concession on the point before the High Court and at the earliest opportunity, in the petition which was filed for leave under Article 133 of the Constitution, this matter was raised and the same assertions which were made in the return were reiterated. It seems to us that it is futile to go into this question because (a) it is substantially a question of fact and (b) the present appeal can be decided on another ground which arises out of the second contention raised before us. On the admitted fact that the general notice under Section 19 (1) was published and that a return was filed by the respondents in respect of each of the two assessment years in question it is not possible to see how Section 30 would become applicable at all. Sub-section (3) of Section 19 says in categorical terms that if any person has not furnished a return within the time allowed by or under sub-section (1) or sub-section (2) he may furnish a return at any time before the assessment is made and any return so made shall be deemed to be made in due time under thethe present case it is not disputed and cannot indeed be disputed that if the words "at any time" in sub-section (3) of Section 19 of the Act have not to be limited to the year of assessment as has been contended by the learned counsel for the respondents, the present case would be governed by the principles laid down by this Court in the above decisions.It has been urged that the words "at any time" should be given a limited meaning and should be confined to the year of assessment, namely, that the return should be made at any time within the year of assessment and not later in which case) would not apply and the provision of Sec. 30 would be at oncecontention has only to be stated to be rejected. In the first place if sub-section (3) has to be read in the manner suggested it would become ambiguous and almost unintelligible. Secondly according to the ordinary canons of interpretation the words employed must be given their proper and plain meaning. Moreover Section 19 is in pari material with Section 22 of the Income-tax Act and the law which has been laid down by this Court, which interpreting the provisions of that Section must govern the construction of the provisions of Section 19 as well.The High Court in giving the reasons on which the petitions were allowed was not alive to all these matters and the view taken by it is clearly unsustainable.
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Indus Biotech Private Limited Vs. Kotak India Venture (Offshore) Fund (earlier known as Kotak India Venture Limited) & Ors | only the conclusion reached by the Adjudicating Authority, NCLT insofar as the order on the petition under Section 7 of the IB Code at this juncture based on the factual background is justified but also the prayer made by Indus Biotech Private Limited for constitution of the Arbitral Tribunal as made in the petition filed by them under Section 11 of the Act, 1996 before this Court is justified. 33. In that circumstance though in the operative portion of the order dated 09.06.2020 the application filed under Section 8 of the Act, 1996 is allowed and as a corollary the petition under Section 7 of the IB Code is dismissed; in the facts and circumstances of the present case it can be construed in the reverse. Hence, since the conclusion by the Adjudicating Authority is that there is no default, the dismissal of the petition under Section 7 of IB Code at this stage is justified. Though the application under Section 8 of the Act, 1996 is allowed, the same in any event will be subject to the consideration of the petition filed under Section 11 of the Act, 1996 before this Court. The contention as to whether payment of investment in preferential shares can be construed as financial debt was raised in the written submissions. However, we have not adverted to that aspect since the same was not the basis of the impugned order passed by the Adjudicating Authority. 34. Since we have arrived at the above conclusion, the next aspect relates to the appointment of the Arbitral Tribunal as sought in the petition. Essentially the main contention that has been urged is with regard to the proceedings before the NCLT and, therefore, the dispute not being arbitrable. However, in the present position the parties would be left with no remedy if the process of arbitration is not initiated and the dispute between the parties are not resolved in that manner as the proceedings before the NCLT has terminated. Mr. Shyam Divan, learned senior counsel for Indus Biotech Private Limited has contended that the transaction between the parties is a common one and as such it would be efficient if the dispute is resolved by a single Arbitral Tribunal. Further in view of the objection raised on behalf of the respondent No.4 (Kotak India Venture) that the arbitration clause has not been invoked in accordance with the requirement therein, since the promoters have to suggest one arbitrator and not the Company, Mr. ANS Nadkarni, learned senior counsel representing the promoters who are arrayed as respondent Nos.5 to 11 in the arbitration petition has pointed out that the affidavit has been filed supporting the petition seeking arbitration and, therefore, the Tribunal be constituted. Though Mr. Neeraj Kishan Kaul, learned senior counsel and Mr. Nitin Mishra, learned counsel had in their argument opposed the reference to arbitration by pointing out lacunae in the manner the clause was invoked and the name of the arbitrator was suggested, in the circumstance the only remedy for the parties being resolution of their dispute through arbitration as indicated above, we consider it appropriate to take note of the substance of the arbitration clause and constitute an appropriate Tribunal. 35. In that regard it would be necessary to consider as to whether the matter is to be referred to a Single Tribunal or the Tribunal be appointed in respect of each of the agreements. Mr. Nitin Mishra in his written submission has contended that there cannot be composite arbitration. In that regard the decision in the case of M/S Duro Felguera S.A vs M/S. Gangavaram Port Limited, (2017) 9 SCC 729 is relied upon with specific reference to paragraphs 38 and 55 therein, while Mr. Ritin Rai has pressed para 44 of the same decision into service seeking common Tribunal. In the said case there were five separate contracts each having independent existence with separate arbitration clauses and in that light, it was held that there cannot be a single Arbitral Tribunal for International Commercial Arbitration and domestic arbitration and bifurcated accordingly. In the instant case also four separate agreements have been entered into between the parties. The provision for arbitration contained in clause 20.04 is similar in all the agreements and the supplemental agreements have also adopted the same. Clause 20.4.1 reads as hereunder: 20.4.1 Except as provided in Section 20.4.2, the parties hereto irrevocably agree that any dispute, controversy or claim arising out of, relating to or in connection with this Agreement (including any provision of any exhibit, annex or schedule hereto) or the existence, breach, termination or validity hereof (a Dispute) shall be finally settled by arbitration. The arbitration shall be conducted in accordance with the international arbitration rules of the Arbitration and Conciliation Act, 1996. The arbitration shall be held at Mumbai and shall be conducted by three (3) arbitrators. For purpose of appointing such arbitrators, KIVF I, KEIT and KIVL shall jointly, on the one hand, and the Promoters, as a group, on the other hand, shall each appoint one arbitrator, and the third arbitrator, who shall be the chairperson, shall be selected by the two party- appointed arbitrators. In the event that any party fails to appoint an arbitrator within fifteen (15) days after receipt of written notice of the other partys intention to refer a Dispute to arbitration, or in the event of the two party- appointed arbitrators failing to identify the third arbitrator within fifteen (15) days after the two party-appointed arbitrators are selected such arbitrator shall be appointed by a Court of competent jurisdiction on an application initiated by any party. An arbitral tribunal thus constituted is herein referred to as a Tribunal. In the event an appointed arbitrator may not continue to act as an arbitrator of a Tribunal, then the party (or the two appointed arbitrators, in the case of the third arbitrator) that appointed such arbitrator shall have the right to appoint a replacement arbitrator in accordance with the provisions of this Section 20.4.1. | 0[ds]11. As a matter of fact, the transaction entered into between the parties arising out of the SS and SA dated 20.07.2007, 12.07.2007, 09.01.2008 and the supplemental agreements dated 22.03.2013 and 19.07.2017 is not in dispute. The further fact that the SS and SA dated 20.07.2007, 12.07.2007 and 09.01.2008 vide Clause 20.4 provides for arbitration in the event of any dispute, controversy or claim arising out of, relating to or in connection with the said agreement is also not in dispute. Further the supplemental agreements vide Clause 13 and 19 respectively provides that the provision for arbitration in Clause 20.4 of the SS and SA agreement dated 20.07.2007 shall apply to the supplemental agreement is also evident. If in that context the matter is looked at, there would be no need for this Court to advert to any other aspect in the petition filed under Section 11 of the Act, 1996 since in the normal circumstance, on constitution of the Arbitral Tribunal all other issues are to be gone into by the Arbitral Tribunal relating to the above noted dispute between the parties. However, the nature of Arbitral Tribunal will have to be considered since one is international arbitration and the other are domestic.12. Despite the said position, before concluding on the Arbitration Petition filed by Indus Biotech Private Limited, keeping in perspective the objection raised by the Kotak India Venture relating to the petition having already been instituted before the NCLT under Section 7 of the IBC and also keeping in perspective the order dated 09.06.2020 passed by NCLT disposing of the application filed under Section 8 of the Act, 1996; the matter requires deeper consideration on that aspect13. Before adverting to the contentions in this regard, it is to be taken note that against the order dated 09.06.2020 assailed in the special leave petition, Kotak India Venture in the normal course if aggrieved, ought to have availed the remedy of appeal by filing an appeal in the NCLAT as provided under Section 61 of IB Code. Having not done so, in a normal circumstance we would have chosen to relegate Kotak India Venture to avail the alternate remedy of appeal. The contention on behalf of Kotak India Venture that they do not have the remedy of appeal as it is an order disposing an application filed under Act, 1996 and not an order under the part as provided in Section 61 of IB Code is noted only to be rejected. The order dated 09.06.2020 is certainly an order passed by the Adjudicating Authority under IB Code and petition under Section 7 of that Code is also disposed.However, as noted from the narration made above, the order dated 09.06.2020 passed by the NCLT is while taking note of petition under Section 7 of IB Code, in the backdrop of Indus Biotech seeking for the resolution of dispute through arbitration and the Arbitration Petition to that effect was already pending before this Court as on the date the order was passed by the NCLT. It is only in this special circumstance we have proceeded to entertain the petition and examine the matter on merits.15. This Court had the occasion to consider exhaustively the scheme and working of the IB Code in the case of Innoventive Industries Limited vs. ICICI Bank and Another (2018) 1 SCC 407. The proceeding under Section 7 of the IB Code and the scope thereof is articulated in paras 27 to 30 which read hereunder,27. The scheme of the Code is to ensure that when a default takes place, in the sense that a debt becomes due and is not paid, the insolvency resolution process begins. Default is defined in Section 3(12) in very wide terms as meaning non-payment of a debt once it becomes due and payable, which includes non-payment of even part thereof or an instalment amount. For the meaning of debt, we have to go to Section 3(11), which in turn tells us that a debt means a liability of obligation in respect of a claim and for the meaning of claim, we have to go back to Section 3(6) which defines claim to mean a right to payment even if it is disputed. The Code gets triggered the moment default is of rupees one lakh or more (Section 4).The corporate insolvency resolution process may be triggered by the corporate debtor itself or a financial creditor or operational creditor. A distinction is made by the Code between debts owed to financial creditors and operational creditors. A financial creditor has been defined under Section 5(7) as a person to whom a financial debt is owed and a financial debt is defined in Section 5(8) to mean a debt which is disbursed against consideration for the time value of money. As opposed to this, an operational creditor means a person to whom an operational debt is owed and an operational debt under Section 5(21) means a claim in respect of provision of goods or services.28. When it comes to a financial creditor triggering the process, Section 7 becomes relevant. Under the Explanation to Section 7(1), a default is in respect of a financial debt owed to any financial creditor of the corporate debtor — it need not be a debt owed to the applicant financial creditor. Under Section 7(2), an application is to be made under sub- section (1) in such form and manner as is prescribed, which takes us to the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Under Rule 4, the application is made by a financial creditor in Form 1 accompanied by documents and records required therein. Form 1 is a detailed form in 5 parts, which requires particulars of the applicant in Part I, particulars of the corporate debtor in Part II, particulars of the proposed interim resolution professional in Part III, particulars of the financial debt in Part IV and documents, records and evidence of default in Part V. Under Rule 4(3), the applicant is to dispatch a copy of the application filed with the adjudicating authority by registered post or speed post to the registered office of the corporate debtor. The speed, within which the adjudicating authority is to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the stage of Section 7(5), where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out that a default has not occurred in the sense that the debt, which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority. Under sub-section (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission or rejection of such application, as the case may be.29. The scheme of Section 7 stands in contrast with the scheme under Section 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in Section 8(1) of the Code. Under Section 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in sub-section (1), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which is pre-existing—i.e. before such notice or invoice was received by the corporate debtor. The moment there is existence of such a dispute, the operational creditor gets out of the clutches of the Code.30. On the other hand, as we have seen, in the case of a corporate debtor who commits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is due i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise.17. The procedure contemplated will indicate that before the Adjudicating Authority is satisfied as to whether the default has occurred or not, in addition to the material placed by the financial creditor, the corporate debtor is entitled to point out that the default has not occurred and that the debt is not due, consequently to satisfy the Adjudicating Authority that there is no default. In such exercise undertaken by the Adjudicating Authority if it is found that there is default, the process as contemplated under sub-Section (5) of Section 7 of IB Code is to be followed as provided under sub-Section 5(a); or if there is no default the Adjudicating Authority shall reject the application as provided under sub-Section 5(b) to Section 7 of IB Code. In that circumstance if the finding of default is recorded and the Adjudicating Authority proceeds to admit the application, the Corporate Insolvency Resolution Process commences as provided under sub-section (6) and is required to be processed further. In such event, it becomes a proceeding in rem on the date of admission and from that point onwards the matter would not be arbitrable. The only course to be followed thereafter is the resolution process under IB Code. Therefore, the trigger point is not the filing of the application under Section 7 of IB Code but admission of the same on determining default.18. In that circumstance, though Dr. Singhvi has referred to the evolution of IB Code after all earlier legal process had failed to give the rightful place to the creditor; which is sought to be achieved by the IB Code, it cannot be said that by the procedure prescribed under the IB Code it means that the claim of the creditor if made before the NCLT, more particularly under Section 7 of IB Code is sacrosanct and the corporate debtor is denuded of putting forth its version or the contention to show to the Adjudicating Authority that the default has not occurred and explain the circumstance for contending so. In fact, in the very decision relied on by both the parties in the case of Innoventive Industries Limited (supra), this court while considering the scope of the various provisions under the Act and while referring to the procedure contemplated in a petition under Section 7 of the IB Code, which is also extracted supra reads thus: -It is at the stage of Section 7(5), where the Adjudicating Authority is to be satisfied that default has occurred, that the corporate debtor is entitled to point out that a default has not occurred in the sense that the debt, which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact.It is no doubt true that the original period of the OCRPS was up to 31.12.2018, on which date it could be redeemed.20. Therefore, in a fact situation of the present nature when the process of conversion had commenced and certain steps were taken in that direction, even if the redemption date is kept in view and the clause in Schedule J indicating that redemption value shall constitute a debt outstanding is taken note; when certain transactions were discussed between the parties and had not concluded since the point as to whether it was 30 per cent of the equity shares in the company or 10 per cent by applying proper formula had not reached a conclusion and thereafter agreed or disagreed, it would not have been appropriate to hold that there is default and admit the petition merely because a claim was made by Kotak Venture as per the originally agreed date and a petition was filed. In the process of consideration to be made by the Adjudicating Authority the facts in the particular case is to be taken into consideration before arriving at a conclusion as to whether a default has occurred even if there is a debt in strict sense of the term, which exercise in the present case has been done by the Adjudicating Authority.21. In such circumstance if the Adjudicating Authority finds from the material available on record that the situation is not yet ripe to call it a default, that too if it is satisfied that it is profit making company and certain other factors which need consideration, appropriate orders in that regard would be made; the consequence of which could be the dismissal of the petition under Section 7 of IB Code on taking note of the stance of the corporate debtor. As otherwise if in every case where there is debt, if default is also assumed and the process becomes automatic, a company which is ably running its administration and discharging its debts in planned manner may also be pushed to the Corporate Insolvency Resolution Process and get entangled in a proceeding with no point of return. Therefore, the Adjudicating Authority certainly would make an objective assessment of the whole situation before coming to a conclusion as to whether the petition under Section 7 of IB Code is to be admitted in the factual background.We note, it cannot be in dispute that so would be the case even if the Adjudicating Authority takes a view that the petition is not ripe to be entertained or does not constitute all the ingredients, more particularly default, to admit the petition, since even such order would remain appealable to the NCLAT and the Supreme Court where the correctness in that regard also will be examined.In our view, the stage of the proceedings at which the said observation was made will be relevant. If the case has reached the stage to the status of a proceeding in rem, then such observation would not be justified and sustainable but not otherwise. In the instant case, the petition was yet to be admitted and, therefore had not assumed the status of a proceedings in rem.23. The tests to be applied to determine as to when the subject matter is not arbitrable and on applying such test, actions in rem is not arbitrable is laid down by this Court in the case of Vidya Drolia and Others Vs. Durga Trading Corporation (2021 2 SCC 1 ) which reads as hereunder:76. In view of the above discussion, we would like to propound a fourfold test for determining when the subject matter of a dispute in an arbitration agreement is not arbitrable:76.1 (1) when cause of action and subject matter of the dispute relates to actions in rem, that do not pertain to subordinate rights in personam that arise from rights in rem.76.2 (2) when cause of action and subject matter of the dispute affects third party rights; have erga omnes effect; require centralized adjudication, and mutual adjudication would not be appropriate and enforceable;76.3 (3) when cause of action and subject matter of the dispute relates to inalienable sovereign and public interest functions of the State and hence mutual adjudication would be unenforceable; and76.4 (4) when the subject-matter of the dispute is expressly or by necessary implication non-arbitrable as per mandatory statute(s).76.5 (5) These tests are not watertight compartments; they dovetail and overlap, albeit when applied holistically and pragmatically will help and assist in determining and ascertaining with great degree of certainty when as per law in India, a dispute or subject matter is non-arbitrable. Only when the answer is affirmative that the subject matter of the dispute would be non-arbitrable.76.6. However, the aforesaid principles have to be applied with care and caution as observed in Olympus Superstructures (P) Ltd. [Olympus Superstructures (P) Ltd. v. Meena Vijay Khetan, (1999) 5 SCC 651 ] : (SCC p. 669, para 35)35. … Reference is made there to certain disputes like criminal offences of a public nature, disputes arising out of illegal agreements and disputes relating to status, such as divorce, which cannot be referred to arbitration. It has, however, been held that if in respect of facts relating to a criminal matter, say, physical injury, if there is a right to damages for personal injury, then such a dispute can be referred to arbitration (Keir v. Leeman [Keir v. Leeman, (1846) 9 QB 371 : 115 ER 1315] ). Similarly, it has been held that a husband and a wife may refer to arbitration the terms on which they shall separate, because they can make a valid agreement between themselves on that matter.77. Applying the above principles to determine non- arbitrability, it is apparent that insolvency or intracompany disputes have to be addressed by a centralised forum, be the court or a special forum, which would be more efficient and has complete jurisdiction to efficaciously and fully dispose of the entire matter. They are also actions in rem. Similarly, grant and issue of patents and registration of trade marks are exclusive matters falling within the sovereign or government functions and have erga omnes effect. Such grants confer monopoly rights. They are non-arbitrable. Criminal cases again are not arbitrable as they relate to sovereign functions of the State. Further, violations of criminal law are offences against the State and not just against the victim. Matrimonial disputes relating to the dissolution of marriage, restitution of conjugal rights, etc. are not arbitrable as they fall within the ambit of sovereign functions and do not have any commercial and economic value. The decisions have erga omnes effect. Matters relating to probate, testamentary matter, etc. are actions in rem and are a declaration to the world at large and hence are non-arbitrable.In view of the exhaustive consideration made in Vidya Drolia and our clear understanding that a dispute will be non- arbitrable when a proceeding is in rem and a IB Code proceeding is to be considered in rem only after it is admitted it is seen that in the instant case the position is otherwise. The decisions relied on behalf of Kotak India Venture in the case of Booz Allen and Hamilton Vs. SBI Home Finance Ltd. & Others (2011) 5 SCC 532 and A. Ayyasamy Vs. A. Paramasivam & Others (2016) 10 SCC 386 need not be referred in detail and overburden this judgment since they have been referred in Vidya Drolia which also explain the same situation.24. In the case of Swiss Ribbons Private Limited vs. Union of India (2019) 4 SCC 17 and Pioneer Urban Land and Infrastructure Limited vs. Union of India & Ors. (W.P.(C) No.43/2019) relied on behalf of Kotak Venture, the entire scope and ambit of the IB Code was considered and the validity of the provisions were upheld. The said decisions have also been relied on to contend that when the petition under Section 7 of IB Code is triggered it becomes a proceedings in rem and even the creditor who has triggered the process would also lose control of the proceedings as Corporate Insolvency Resolution Process is required to be considered through the mechanism provided under the IB Code. The principles as laid down in Swiss Ribbons (supra) was also referred to in detail in the case of Pioneer Urban Land and Infrastructure (supra) wherein the observations contained in para 39 though in the case of Real Estate Development was laid down. The relevant portion which has been referred to, reads as follows:-Thus, any allottee/home buyer who prefers an application under Section 7 of the Code takes the risks of his flat/apartment not being completed in the near future, in the event of there being a breach on the part of the developers. Under the Code, he may never get refund of the entire principal, let alone interest. This is because, the moment a petition is admitted under Section 7, the resolution professional must first advertise for and find a resolution plan by somebody, usually another developer which has then to pass muster under the Code, i.e. that it must be approved by at least 66 per cent of the Committee of Creditors and must further go through challenges before NCLT and NCLAT before the new management can take over and either complete construction or pay out for refund amounts.The underlying principle, therefore, from all the above noted decisions is that the reference to the triggering of a petition under Section 7 of the IB Code to consider the same as a proceedings in rem, it is necessary that the Adjudicating Authority ought to have applied its mind, recorded a finding of default and admitted the petition. On admission, third party right is created in all the creditors of the corporate debtors and will have erga omnes effect. The mere filing of the petition and its pendency before admission, therefore, cannot be construed as the triggering of a proceeding in rem. Hence, the admission of the petition for consideration of the Corporate Insolvency Resolution Process is the relevant stage which would decide the status and the nature of the pendency of the proceedings and the mere filing cannot be taken as the triggering of the insolvency process.27. Therefore, to sum up the procedure, it is clarified that in any proceeding which is pending before the Adjudicating Authority under Section 7 of IB Code, if such petition is admitted upon the Adjudicating Authority recording the satisfaction with regard to the default and the debt being due from the corporate debtor, any application under Section 8 of the Act, 1996 made thereafter will not be maintainable. In a situation where the petition under Section 7 of IB Code is yet to be admitted and, in such proceedings, if an application under Section 8 of the Act, 1996 is filed, the Adjudicating Authority is duty bound to first decide the application under Section 7 of the IB Code by recording a satisfaction with regard to there being default or not, even if the application under Section 8 of Act, 1996 is kept along for consideration. In such event, the natural consequence of the consideration made therein on Section 7 of IB Code application would befall on the application under Section 8 of the Act, 1996.28. In the above background, on reverting to the fact situation in this case, a perusal of the order dated 09.06.2020 would indicate that the Adjudicating Authority, NCLT though has taken up the application filed under Section 8 of the Act, 1996 as the lead consideration, the petition filed under Section 7 of the IB Code is also taken alongside and made a part of the consideration in the said order. A further perusal of the order would disclose that the Adjudicating Authority was conscious of the fact that consideration of the matter before it any further would arise only if there is default and the debt is payable. This is evident from the observation contained in para 5.13 of the order. The further narration made in para 5.14 would indicate that the Adjudicating Authority, from the material available on record had arrived at the conclusion that the issue involved has not led to a stage of the default having occurred and has rightly, in that context held that the claim of the company by invoking the arbitration clause is justified but the Adjudicating Authority has rightly done nothing with regard to arbitration and has left it to this Court. Accordingly, the Adjudicating Authority in para 5.15 has categorically recorded that they are not satisfied that a default has occurred.30. The conclusion reached by the Adjudicating Authority, NCLT in the instant case cannot be faulted if reference is made to the documents produced by Indus Biotech Private Limited along with an application and referred to by Mr. Shyam Divan, learned senior counsel are noted. It indicates that the allotment of equity shares against the OCRPS in view of the QIPO was still a matter of discussion between the parties and no conclusion had been arrived at so as to term it as default. The said issue was initiated in the 121st meeting of the Board of Directors wherein the Nominee Director representing Kotak India Venture Fund was also present. The IPO related matters were discussed as item No.6 and at 6(c). The discussion and decision that the conversion of the outstanding preference shares would take place after issuance of bonus shares as per the provisions of the Shareholders Agreement was recorded. In the 122nd meeting of the Board of Directors wherein the Non-Executive Director and Nominee Director representing Kotak India Venture were also present, the issue was considered at item No.7. It was resolved that the Board has accorded approval to the allocation of such percentage of the offer as may be determined by the Board to any category. Further, though in the Extraordinary General Body meeting dated 10.04.2018, the Representative Directors of the Kotak India Venture had obtained leave of absence, the resolution adopted in the said meeting had indicated that the equity shares of the company proposed to be issued and allotted as bonus equity shares shall be subject to the provisions of the memorandum of association and articles of association of the company. The Company Secretary was authorised to do all such acts in that regard.31. In the letter dated 21.11.2018 addressed by Indus Biotech Private Limited to Kotak India Venture, it was mentioned with regard to the fundamental issue that needs to be addressed regarding conversion and convertible securities into equity shares since the exist process initiated cannot move forward without such conversion. The letter dated 17.12.2018 addressed to Indus Biotech Private Limited by Kotak India Venture in fact refers to the stake in conversion and the dispute being as to whether it should be 10 per cent of the share capital of the company as offered by Indus Biotech Private Limited or 30 per cent as claimed by Kotak India Venture Fund. It is that aspect of the matter, which is still contended to be in dispute between the parties regarding which the arbitration is sought by Indus Biotech Private Limited, which was also noted by Adjudicating Authority. We express no opinion on the merits of the rival contention relating to the dispute.32. In such situation, in our opinion, it would be premature at this point to arrive at a conclusion that there was default in payment of any debt until the said issue is resolved and the amount repayable by Indus Biotech Private Limited to Kotak India Venture with reference to equity shares being issued is determined. In the process, if such determined amount is not paid it will amount to default at that stage. Therefore, if the matter is viewed from any angle, not only the conclusion reached by the Adjudicating Authority, NCLT insofar as the order on the petition under Section 7 of the IB Code at this juncture based on the factual background is justified but also the prayer made by Indus Biotech Private Limited for constitution of the Arbitral Tribunal as made in the petition filed by them under Section 11 of the Act, 1996 before this Court is justified.33. In that circumstance though in the operative portion of the order dated 09.06.2020 the application filed under Section 8 of the Act, 1996 is allowed and as a corollary the petition under Section 7 of the IB Code is dismissed; in the facts and circumstances of the present case it can be construed in the reverse. Hence, since the conclusion by the Adjudicating Authority is that there is no default, the dismissal of the petition under Section 7 of IB Code at this stage is justified. Though the application under Section 8 of the Act, 1996 is allowed, the same in any event will be subject to the consideration of the petition filed under Section 11 of the Act, 1996 before this Court. The contention as to whether payment of investment in preferential shares can be construed as financial debt was raised in the written submissions. However, we have not adverted to that aspect since the same was not the basis of the impugned order passed by the Adjudicating Authority. | 0 | 9,514 | 5,235 | ### Instruction:
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only the conclusion reached by the Adjudicating Authority, NCLT insofar as the order on the petition under Section 7 of the IB Code at this juncture based on the factual background is justified but also the prayer made by Indus Biotech Private Limited for constitution of the Arbitral Tribunal as made in the petition filed by them under Section 11 of the Act, 1996 before this Court is justified. 33. In that circumstance though in the operative portion of the order dated 09.06.2020 the application filed under Section 8 of the Act, 1996 is allowed and as a corollary the petition under Section 7 of the IB Code is dismissed; in the facts and circumstances of the present case it can be construed in the reverse. Hence, since the conclusion by the Adjudicating Authority is that there is no default, the dismissal of the petition under Section 7 of IB Code at this stage is justified. Though the application under Section 8 of the Act, 1996 is allowed, the same in any event will be subject to the consideration of the petition filed under Section 11 of the Act, 1996 before this Court. The contention as to whether payment of investment in preferential shares can be construed as financial debt was raised in the written submissions. However, we have not adverted to that aspect since the same was not the basis of the impugned order passed by the Adjudicating Authority. 34. Since we have arrived at the above conclusion, the next aspect relates to the appointment of the Arbitral Tribunal as sought in the petition. Essentially the main contention that has been urged is with regard to the proceedings before the NCLT and, therefore, the dispute not being arbitrable. However, in the present position the parties would be left with no remedy if the process of arbitration is not initiated and the dispute between the parties are not resolved in that manner as the proceedings before the NCLT has terminated. Mr. Shyam Divan, learned senior counsel for Indus Biotech Private Limited has contended that the transaction between the parties is a common one and as such it would be efficient if the dispute is resolved by a single Arbitral Tribunal. Further in view of the objection raised on behalf of the respondent No.4 (Kotak India Venture) that the arbitration clause has not been invoked in accordance with the requirement therein, since the promoters have to suggest one arbitrator and not the Company, Mr. ANS Nadkarni, learned senior counsel representing the promoters who are arrayed as respondent Nos.5 to 11 in the arbitration petition has pointed out that the affidavit has been filed supporting the petition seeking arbitration and, therefore, the Tribunal be constituted. Though Mr. Neeraj Kishan Kaul, learned senior counsel and Mr. Nitin Mishra, learned counsel had in their argument opposed the reference to arbitration by pointing out lacunae in the manner the clause was invoked and the name of the arbitrator was suggested, in the circumstance the only remedy for the parties being resolution of their dispute through arbitration as indicated above, we consider it appropriate to take note of the substance of the arbitration clause and constitute an appropriate Tribunal. 35. In that regard it would be necessary to consider as to whether the matter is to be referred to a Single Tribunal or the Tribunal be appointed in respect of each of the agreements. Mr. Nitin Mishra in his written submission has contended that there cannot be composite arbitration. In that regard the decision in the case of M/S Duro Felguera S.A vs M/S. Gangavaram Port Limited, (2017) 9 SCC 729 is relied upon with specific reference to paragraphs 38 and 55 therein, while Mr. Ritin Rai has pressed para 44 of the same decision into service seeking common Tribunal. In the said case there were five separate contracts each having independent existence with separate arbitration clauses and in that light, it was held that there cannot be a single Arbitral Tribunal for International Commercial Arbitration and domestic arbitration and bifurcated accordingly. In the instant case also four separate agreements have been entered into between the parties. The provision for arbitration contained in clause 20.04 is similar in all the agreements and the supplemental agreements have also adopted the same. Clause 20.4.1 reads as hereunder: 20.4.1 Except as provided in Section 20.4.2, the parties hereto irrevocably agree that any dispute, controversy or claim arising out of, relating to or in connection with this Agreement (including any provision of any exhibit, annex or schedule hereto) or the existence, breach, termination or validity hereof (a Dispute) shall be finally settled by arbitration. The arbitration shall be conducted in accordance with the international arbitration rules of the Arbitration and Conciliation Act, 1996. The arbitration shall be held at Mumbai and shall be conducted by three (3) arbitrators. For purpose of appointing such arbitrators, KIVF I, KEIT and KIVL shall jointly, on the one hand, and the Promoters, as a group, on the other hand, shall each appoint one arbitrator, and the third arbitrator, who shall be the chairperson, shall be selected by the two party- appointed arbitrators. In the event that any party fails to appoint an arbitrator within fifteen (15) days after receipt of written notice of the other partys intention to refer a Dispute to arbitration, or in the event of the two party- appointed arbitrators failing to identify the third arbitrator within fifteen (15) days after the two party-appointed arbitrators are selected such arbitrator shall be appointed by a Court of competent jurisdiction on an application initiated by any party. An arbitral tribunal thus constituted is herein referred to as a Tribunal. In the event an appointed arbitrator may not continue to act as an arbitrator of a Tribunal, then the party (or the two appointed arbitrators, in the case of the third arbitrator) that appointed such arbitrator shall have the right to appoint a replacement arbitrator in accordance with the provisions of this Section 20.4.1.
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befall on the application under Section 8 of the Act, 1996.28. In the above background, on reverting to the fact situation in this case, a perusal of the order dated 09.06.2020 would indicate that the Adjudicating Authority, NCLT though has taken up the application filed under Section 8 of the Act, 1996 as the lead consideration, the petition filed under Section 7 of the IB Code is also taken alongside and made a part of the consideration in the said order. A further perusal of the order would disclose that the Adjudicating Authority was conscious of the fact that consideration of the matter before it any further would arise only if there is default and the debt is payable. This is evident from the observation contained in para 5.13 of the order. The further narration made in para 5.14 would indicate that the Adjudicating Authority, from the material available on record had arrived at the conclusion that the issue involved has not led to a stage of the default having occurred and has rightly, in that context held that the claim of the company by invoking the arbitration clause is justified but the Adjudicating Authority has rightly done nothing with regard to arbitration and has left it to this Court. Accordingly, the Adjudicating Authority in para 5.15 has categorically recorded that they are not satisfied that a default has occurred.30. The conclusion reached by the Adjudicating Authority, NCLT in the instant case cannot be faulted if reference is made to the documents produced by Indus Biotech Private Limited along with an application and referred to by Mr. Shyam Divan, learned senior counsel are noted. It indicates that the allotment of equity shares against the OCRPS in view of the QIPO was still a matter of discussion between the parties and no conclusion had been arrived at so as to term it as default. The said issue was initiated in the 121st meeting of the Board of Directors wherein the Nominee Director representing Kotak India Venture Fund was also present. The IPO related matters were discussed as item No.6 and at 6(c). The discussion and decision that the conversion of the outstanding preference shares would take place after issuance of bonus shares as per the provisions of the Shareholders Agreement was recorded. In the 122nd meeting of the Board of Directors wherein the Non-Executive Director and Nominee Director representing Kotak India Venture were also present, the issue was considered at item No.7. It was resolved that the Board has accorded approval to the allocation of such percentage of the offer as may be determined by the Board to any category. Further, though in the Extraordinary General Body meeting dated 10.04.2018, the Representative Directors of the Kotak India Venture had obtained leave of absence, the resolution adopted in the said meeting had indicated that the equity shares of the company proposed to be issued and allotted as bonus equity shares shall be subject to the provisions of the memorandum of association and articles of association of the company. The Company Secretary was authorised to do all such acts in that regard.31. In the letter dated 21.11.2018 addressed by Indus Biotech Private Limited to Kotak India Venture, it was mentioned with regard to the fundamental issue that needs to be addressed regarding conversion and convertible securities into equity shares since the exist process initiated cannot move forward without such conversion. The letter dated 17.12.2018 addressed to Indus Biotech Private Limited by Kotak India Venture in fact refers to the stake in conversion and the dispute being as to whether it should be 10 per cent of the share capital of the company as offered by Indus Biotech Private Limited or 30 per cent as claimed by Kotak India Venture Fund. It is that aspect of the matter, which is still contended to be in dispute between the parties regarding which the arbitration is sought by Indus Biotech Private Limited, which was also noted by Adjudicating Authority. We express no opinion on the merits of the rival contention relating to the dispute.32. In such situation, in our opinion, it would be premature at this point to arrive at a conclusion that there was default in payment of any debt until the said issue is resolved and the amount repayable by Indus Biotech Private Limited to Kotak India Venture with reference to equity shares being issued is determined. In the process, if such determined amount is not paid it will amount to default at that stage. Therefore, if the matter is viewed from any angle, not only the conclusion reached by the Adjudicating Authority, NCLT insofar as the order on the petition under Section 7 of the IB Code at this juncture based on the factual background is justified but also the prayer made by Indus Biotech Private Limited for constitution of the Arbitral Tribunal as made in the petition filed by them under Section 11 of the Act, 1996 before this Court is justified.33. In that circumstance though in the operative portion of the order dated 09.06.2020 the application filed under Section 8 of the Act, 1996 is allowed and as a corollary the petition under Section 7 of the IB Code is dismissed; in the facts and circumstances of the present case it can be construed in the reverse. Hence, since the conclusion by the Adjudicating Authority is that there is no default, the dismissal of the petition under Section 7 of IB Code at this stage is justified. Though the application under Section 8 of the Act, 1996 is allowed, the same in any event will be subject to the consideration of the petition filed under Section 11 of the Act, 1996 before this Court. The contention as to whether payment of investment in preferential shares can be construed as financial debt was raised in the written submissions. However, we have not adverted to that aspect since the same was not the basis of the impugned order passed by the Adjudicating Authority.
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Shankar Narayan Ranade Vs. Union Of India | which may be lawfully so appropriated by every one having a right of access to it."Therefore, the argument that the grant of the soil of the village including the bed of the river must necessarily include the grant of the title of the flowing water of the river cannot be accepted.12. In this connection, it is necessary to remember that the river Valdevi flows through the village only for the distance of 2 miles and 2 furlongs. It is not a case where the whole of the stream of the river from its origin to its merging in another river runs entirely through this village. If a river takes its origin within the limits of an Inam village and its course is terminated within the limits of the same village, that would be another matter. In the present case, if the appellants right to the flowing water of the river is conceded, it would mean that the Inamdars would be able to divert the water completely and destroy the right of the other riparian owners whose lands are situated outside the village. They may be able to pollute the water or do anything with it to the prejudice of the said riparian owners. Such rights cannot be claimed by the appellant unless the Sanad in his favour makes the grant of the running water in terms. As we have already seen, the Sanad not only does not make any such grant, but by necessary implications also excludes the running water from the purview of the grant.13. Mr. Pathak then attempted to argue that the diversion of the water of the river Valdevi during the relevant period affected the appellants right as the riparian owner and that, according to him, would furnish him with a cause of action for claiming damages against the respondents. In this connection, Mr. Pathak invited our attention to the observations of Parke, B in Embrey v. Owen, (1851) 6 Ex. 353 "Flowing water", said Parke, B.,"is publici juris in this sense only that all may reasonably use it who have a right of access to it, and that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only - The right to have a stream of water flow in its natural state, without diminution or alteration, is an incident to the property in the land through which it passes; but this is not an absolute and exclusive right to the flow of all the water, but only subject to the right of other riparian proprietors to the reasonable enjoyment of it; and consequently it is only from an unreasonable and unauthorised use of this common benefit that any action will lie."14. In this connection Mr. Pathak has also referred us to the decision of the Privy Council in the Secretary of State v. Sannidhireju Subbarayudu, 59 Ind App 56 at pp. 63, 64, 65 (AIR 1932 PC 46 at pp. 48, 49). In that case, the Privy Council has elaborately considered the nature and extent of the rights which a riparian owner can claim. "A riparian owner, observed Viscount Dunedin,"is a person who owns land abutting on a stream and who as such has a certain right to take water from the stream. In ordinary cases, the fact that his land abuts on the stream makes him the proprietor of the bed of the stream us gue ad medium filum. But he may not be. He may be ousted by an actual grant to the person on the other side, or he may be and often is ousted by the Crown when the stream is tidal and navigable, the solum of the bed belongs to the Crown.It was also observed that"the right of a riparian owner to take water is first of all, for domestic use, and then for other uses connected with the land, of which irrigation of the lands which from the property is one. This right "is a natural right and not in the strict sense of the word an easement, though in many cases it has been called an easement.15. We do not, however, think that it is possible for us to allow Mr. Pathak to raise this alternative argument before us, because it is clear that the reliefs claimed by the appellant were based only on one ground and that was the title to the flowing water of the river. In paragraph 8 of the plaint the appellant has specifically stated that he was claiming the amount of compensation for the use of water belonging to the plaintiff and in paragraph 3 it has been clearly averred that the running water of the river belongs to the appellant and so, by the unauthorised acts of the military authorities, the appellant and the Inamdars were not able to let out their bed of the stream for the plantation of water-melons etc, and were thus put to loss. In other words, the plaint has made no allegation even alternatively that the appellant and the other Inamdars of the village had certain rights in the flowing water of the river as riparian owners and the illegal acts of the military authorities had affected the said rights and thereby caused damage to them. In fact, as the High Court has pointed out, there is no evidence on the record which would sustain the appellants claim that the acts of the military authorities had prejudicially affected the appellants rights as a riparian owner to the use of the water, and that means, on the record there is nothing to show that any damage had been caused to the Inamdars of the village as a result of the diversion of the water caused by the military authorities. Therefore, we are satisfied that the appellant cannot now make an alternative case on the ground of his rights as a riparian owner. | 0[ds].Therefore, on a plain construction of the relevant words used in the Sanad, there can be no doubt that what is conveyed to the grantee by the Sanad is stationary or static water in the ponds or wells and not the flowing water of the river.The specific reference to water meaning water o the well or the pond serves two purposes; it defines the kind of water which is conveyed, and by necessary implication, excludes the grant of flowing water of the river. Sanads containing words like these have frequently been considered by the Bombay High Court in the past and it has been consistently held that the word "water" means only water in the ponds or well and does not refer to the flowing water of thethe two considerations on which Mr. Pathak strongly relied in support of his construction of the Sanad do not really assist him. The language of the Sanad precisely defines the nature of the water that is conveyed and in doing so, by necessary implication, excludes the flowing water ofare two difficulties in accepting this contention. The first difficulty is that the use of the words "water (jal)" in the Sanad, as we have already held, excludes the running water of the river. Besides it is by no means clear that the title to the flowing water of the river necessarily goes with the title to the bed of the river.We do not, however, think that it is possible for us to allow Mr. Pathak to raise this alternative argument before us, because it is clear that the reliefs claimed by the appellant were based only on one ground and that was the title to the flowing water of the river. In paragraph 8 of the plaint the appellant has specifically stated that he was claiming the amount of compensation for the use of water belonging to the plaintiff and in paragraph 3 it has been clearly averred that the running water of the river belongs to the appellant and so, by the unauthorised acts of the military authorities, the appellant and the Inamdars were not able to let out their bed of the stream for the plantation of water-melons etc, and were thus put to loss. In other words, the plaint has made no allegation even alternatively that the appellant and the other Inamdars of the village had certain rights in the flowing water of the river as riparian owners and the illegal acts of the military authorities had affected the said rights and thereby caused damage to them. In fact, as the High Court has pointed out, there is no evidence on the record which would sustain the appellants claim that the acts of the military authorities had prejudicially affected the appellants rights as a riparian owner to the use of the water, and that means, on the record there is nothing to show that any damage had been caused to the Inamdars of the village as a result of the diversion of the water caused by the military authorities. Therefore, we are satisfied that the appellant cannot now make an alternative case on the ground of his rights as a riparian owner. | 0 | 3,821 | 572 | ### 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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which may be lawfully so appropriated by every one having a right of access to it."Therefore, the argument that the grant of the soil of the village including the bed of the river must necessarily include the grant of the title of the flowing water of the river cannot be accepted.12. In this connection, it is necessary to remember that the river Valdevi flows through the village only for the distance of 2 miles and 2 furlongs. It is not a case where the whole of the stream of the river from its origin to its merging in another river runs entirely through this village. If a river takes its origin within the limits of an Inam village and its course is terminated within the limits of the same village, that would be another matter. In the present case, if the appellants right to the flowing water of the river is conceded, it would mean that the Inamdars would be able to divert the water completely and destroy the right of the other riparian owners whose lands are situated outside the village. They may be able to pollute the water or do anything with it to the prejudice of the said riparian owners. Such rights cannot be claimed by the appellant unless the Sanad in his favour makes the grant of the running water in terms. As we have already seen, the Sanad not only does not make any such grant, but by necessary implications also excludes the running water from the purview of the grant.13. Mr. Pathak then attempted to argue that the diversion of the water of the river Valdevi during the relevant period affected the appellants right as the riparian owner and that, according to him, would furnish him with a cause of action for claiming damages against the respondents. In this connection, Mr. Pathak invited our attention to the observations of Parke, B in Embrey v. Owen, (1851) 6 Ex. 353 "Flowing water", said Parke, B.,"is publici juris in this sense only that all may reasonably use it who have a right of access to it, and that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only - The right to have a stream of water flow in its natural state, without diminution or alteration, is an incident to the property in the land through which it passes; but this is not an absolute and exclusive right to the flow of all the water, but only subject to the right of other riparian proprietors to the reasonable enjoyment of it; and consequently it is only from an unreasonable and unauthorised use of this common benefit that any action will lie."14. In this connection Mr. Pathak has also referred us to the decision of the Privy Council in the Secretary of State v. Sannidhireju Subbarayudu, 59 Ind App 56 at pp. 63, 64, 65 (AIR 1932 PC 46 at pp. 48, 49). In that case, the Privy Council has elaborately considered the nature and extent of the rights which a riparian owner can claim. "A riparian owner, observed Viscount Dunedin,"is a person who owns land abutting on a stream and who as such has a certain right to take water from the stream. In ordinary cases, the fact that his land abuts on the stream makes him the proprietor of the bed of the stream us gue ad medium filum. But he may not be. He may be ousted by an actual grant to the person on the other side, or he may be and often is ousted by the Crown when the stream is tidal and navigable, the solum of the bed belongs to the Crown.It was also observed that"the right of a riparian owner to take water is first of all, for domestic use, and then for other uses connected with the land, of which irrigation of the lands which from the property is one. This right "is a natural right and not in the strict sense of the word an easement, though in many cases it has been called an easement.15. We do not, however, think that it is possible for us to allow Mr. Pathak to raise this alternative argument before us, because it is clear that the reliefs claimed by the appellant were based only on one ground and that was the title to the flowing water of the river. In paragraph 8 of the plaint the appellant has specifically stated that he was claiming the amount of compensation for the use of water belonging to the plaintiff and in paragraph 3 it has been clearly averred that the running water of the river belongs to the appellant and so, by the unauthorised acts of the military authorities, the appellant and the Inamdars were not able to let out their bed of the stream for the plantation of water-melons etc, and were thus put to loss. In other words, the plaint has made no allegation even alternatively that the appellant and the other Inamdars of the village had certain rights in the flowing water of the river as riparian owners and the illegal acts of the military authorities had affected the said rights and thereby caused damage to them. In fact, as the High Court has pointed out, there is no evidence on the record which would sustain the appellants claim that the acts of the military authorities had prejudicially affected the appellants rights as a riparian owner to the use of the water, and that means, on the record there is nothing to show that any damage had been caused to the Inamdars of the village as a result of the diversion of the water caused by the military authorities. Therefore, we are satisfied that the appellant cannot now make an alternative case on the ground of his rights as a riparian owner.
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.Therefore, on a plain construction of the relevant words used in the Sanad, there can be no doubt that what is conveyed to the grantee by the Sanad is stationary or static water in the ponds or wells and not the flowing water of the river.The specific reference to water meaning water o the well or the pond serves two purposes; it defines the kind of water which is conveyed, and by necessary implication, excludes the grant of flowing water of the river. Sanads containing words like these have frequently been considered by the Bombay High Court in the past and it has been consistently held that the word "water" means only water in the ponds or well and does not refer to the flowing water of thethe two considerations on which Mr. Pathak strongly relied in support of his construction of the Sanad do not really assist him. The language of the Sanad precisely defines the nature of the water that is conveyed and in doing so, by necessary implication, excludes the flowing water ofare two difficulties in accepting this contention. The first difficulty is that the use of the words "water (jal)" in the Sanad, as we have already held, excludes the running water of the river. Besides it is by no means clear that the title to the flowing water of the river necessarily goes with the title to the bed of the river.We do not, however, think that it is possible for us to allow Mr. Pathak to raise this alternative argument before us, because it is clear that the reliefs claimed by the appellant were based only on one ground and that was the title to the flowing water of the river. In paragraph 8 of the plaint the appellant has specifically stated that he was claiming the amount of compensation for the use of water belonging to the plaintiff and in paragraph 3 it has been clearly averred that the running water of the river belongs to the appellant and so, by the unauthorised acts of the military authorities, the appellant and the Inamdars were not able to let out their bed of the stream for the plantation of water-melons etc, and were thus put to loss. In other words, the plaint has made no allegation even alternatively that the appellant and the other Inamdars of the village had certain rights in the flowing water of the river as riparian owners and the illegal acts of the military authorities had affected the said rights and thereby caused damage to them. In fact, as the High Court has pointed out, there is no evidence on the record which would sustain the appellants claim that the acts of the military authorities had prejudicially affected the appellants rights as a riparian owner to the use of the water, and that means, on the record there is nothing to show that any damage had been caused to the Inamdars of the village as a result of the diversion of the water caused by the military authorities. Therefore, we are satisfied that the appellant cannot now make an alternative case on the ground of his rights as a riparian owner.
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New India Assurance Co. Ltd Vs. R. Srinivasan | District Forum or before the State Commission. Sub-rule (6) of Rule 9 provides as under :- "(6) On the date of hearing or any other day to which hearing may be adjourned, it shall be obligatory for the parties or their authorised agents to appear before the State commission. If appellant or his authorised agent fails to appear on such date, the State commission may, in its discretion, either dismiss the appeal or decide it on the merit of the case. If the respondent or his authorised agent fails to appear on such date, the State Commission shall proceed ex parte and shall decide the appeal ex parte on merits of the case." 16. This Rule is in identical terms with Sub-rule (8) of Rule 4 and Sub-rule (8) of rule 8. Under this Sub-rule, the appeal filed before the State Commission against the order of the District Forum, can be dismissed in default or the State Commission may in its discretion dispose it of on merits. Similar power has been given to the National commission under Rule 15(6) of the rules made by the Central government under Section 30(1) of the Act. These Rules do not provide that if a complaint is dismissed in default by the District Forum under rule 4(8) or by the State commission under Rule 8(8) of the Rules, a second complaint would not lie. Thus, there is no provision parallel to the provision contained in Order 9. Rule 9(1) CPC which contains a prohibition that if a suit is dismissed in default of the plaintiff under Order 9, Rule 8, a second suit on the same cause of action would not lie. That being so, the rule of prohibition contained in Order 9, Rule 9(1) CPC cannot be extended to the proceedings before the District Forum or the State Commission. The fact that the case was not decided on merits and was dismissed in default of non-appearance of the complainant cannot be overlooked and, therefore, it would be permissible to file a second complaint explaining why the earlier complaint could not be pursued and was dismissed in default. 17. But that is not the end of the matter. Mahmood, J. in his dissenting judgment in the Full Bench case of Narsingh Das v. Mangal Dubey & Ors. , ILR (5) Allahabad 163, observed: "The Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle, prohibitions cannot be presumed, and in the present case, therefore, it rests upon the defendants to show that the suit in the form in which it has been brought is prohibited by the rules of procedure applicable to the Courts of Justice in India." 18. We only intend to invoke the spirit of the principle behind the above dictum in support of our view that every court or judicial body or authority which has a duty to decide a lis between two parties, inherently possesses the power to dismiss a case in default. where a case is called up for hearing and the party is not present, the court or the judicial or quasi-judicial body is under no obligation to keep the matter pending before it or to pursue the matter on behalf of the complainant who had instituted the proceedings. That is not the function of the court or, for that matter, of judicial or quasi-judicial body. In the absence of the complainant, therefore, the court will be well within its jurisdiction to dismiss the complaint for non-prosecution. so also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non-appearance of the complainant.19. We cannot also lose sight of the fact that a complainant may harass a party by repeatedly filing the complaint against him. He may file a complaint, draw the opposite party to the State or National commission and then have the complaint dismissed for default. He may repeat the exercise again only to harass the defendant. this practice, or to put it a little sternly, these tactics would be intolerable for any authority under the Act. In such a situation, the District Forum or the State or National Commission would not be helpless and it would be open to them to dismiss the fresh complaint on the ground of abuse of the process available under the Act. They can, in that situation, legitimately invoke the principles of Order 8 Rule 9 C.P.C.20. In the instant case, the vital fact of there being an insurance cover in favour of the respondent is not disputed. the loss suffered by the respondent is not disputed and the claim of the respondent is also not questioned. the only point urged before the State Commission as also before the National Commission and, for the matter, before us is that on account of the first complaint having been dismissed in default and the complaint having not been restored, the second complaint would not lie. The interest of justice, in our opinion, cannot be defeated by this rule of technically. The rules of procedure, as has been laid down by this court a number of times are intended to serve the ends of justice and not to defeat the dispensation of justice. the respondent had suffered loss which was squarely covered by the Policy of Insurance granted by the appellant. Since his claim is not being questioned before us on merits and is being sought to be defeated on the technical plea referred to above. We are not prepared to interfere with the orders passed by the District Forum, the State Commission and the National Commission, particularly as it is stated before us that the whole of the claim amount has already been paid to the respondent. | 0[ds]10. We have already indicated above that the Code of Civil Procedure has been applied to the proceedings under the consumer Protection Act only to a limited extent. If the intention of the Legislature was to apply the provisions of Order 9 also to the proceedings under the Consumer Protection Act, it would have clearly provided in the Act that the provisions of Order 9 will also be applicable to the proceedings before the District Forum or the State Commission or for the matter, before the national Commission. If the Legislature itself did not apply the rule of prohibition contained in Order 9, Rule 9(1), it will be difficult for the Courts to extend that provision to the proceedings under the Act.This Rule is in identical terms with(8) of Rule 4 and(8) of rule 8. Under thisthe appeal filed before the State Commission against the order of the District Forum, can be dismissed in default or the State Commission may in its discretion dispose it of on merits. Similar power has been given to the National commission under Rule 15(6) of the rules made by the Central government under Section 30(1) of the Act. These Rules do not provide that if a complaint is dismissed in default by the District Forum under rule 4(8) or by the State commission under Rule 8(8) of the Rules, a second complaint would not lie. Thus, there is no provision parallel to the provision contained in Order 9. Rule 9(1) CPC which contains a prohibition that if a suit is dismissed in default of the plaintiff under Order 9, Rule 8, a second suit on the same cause of action would not lie. That being so, the rule of prohibition contained in Order 9, Rule 9(1) CPC cannot be extended to the proceedings before the District Forum or the State Commission. The fact that the case was not decided on merits and was dismissed in default ofof the complainant cannot be overlooked and, therefore, it would be permissible to file a second complaint explaining why the earlier complaint could not be pursued and was dismissed in default.We only intend to invoke the spirit of the principle behind the above dictum in support of our view that every court or judicial body or authority which has a duty to decide a lis between two parties, inherently possesses the power to dismiss a case in default. where a case is called up for hearing and the party is not present, the court or the judicial orbody is under no obligation to keep the matter pending before it or to pursue the matter on behalf of the complainant who had instituted the proceedings. That is not the function of the court or, for that matter, of judicial orbody. In the absence of the complainant, therefore, the court will be well within its jurisdiction to dismiss the complaint forso also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for theof the complainant.19. We cannot also lose sight of the fact that a complainant may harass a party by repeatedly filing the complaint against him. He may file a complaint, draw the opposite party to the State or National commission and then have the complaint dismissed for default. He may repeat the exercise again only to harass the defendant. this practice, or to put it a little sternly, these tactics would be intolerable for any authority under the Act. In such a situation, the District Forum or the State or National Commission would not be helpless and it would be open to them to dismiss the fresh complaint on the ground of abuse of the process available under the Act. They can, in that situation, legitimately invoke the principles of Order 8 Rule 9 C.P.C.20. In the instant case, the vital fact of there being an insurance cover in favour of the respondent is not disputed. the loss suffered by the respondent is not disputed and the claim of the respondent is also not questioned. the only point urged before the State Commission as also before the National Commission and, for the matter, before us is that on account of the first complaint having been dismissed in default and the complaint having not been restored, the second complaint would not lie. The interest of justice, in our opinion, cannot be defeated by this rule of technically. The rules of procedure, as has been laid down by this court a number of times are intended to serve the ends of justice and not to defeat the dispensation of justice. the respondent had suffered loss which was squarely covered by the Policy of Insurance granted by the appellant. Since his claim is not being questioned before us on merits and is being sought to be defeated on the technical plea referred to above. We are not prepared to interfere with the orders passed by the District Forum, the State Commission and the National Commission, particularly as it is stated before us that the whole of the claim amount has already been paid to the respondent. | 0 | 3,082 | 951 | ### 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:
District Forum or before the State Commission. Sub-rule (6) of Rule 9 provides as under :- "(6) On the date of hearing or any other day to which hearing may be adjourned, it shall be obligatory for the parties or their authorised agents to appear before the State commission. If appellant or his authorised agent fails to appear on such date, the State commission may, in its discretion, either dismiss the appeal or decide it on the merit of the case. If the respondent or his authorised agent fails to appear on such date, the State Commission shall proceed ex parte and shall decide the appeal ex parte on merits of the case." 16. This Rule is in identical terms with Sub-rule (8) of Rule 4 and Sub-rule (8) of rule 8. Under this Sub-rule, the appeal filed before the State Commission against the order of the District Forum, can be dismissed in default or the State Commission may in its discretion dispose it of on merits. Similar power has been given to the National commission under Rule 15(6) of the rules made by the Central government under Section 30(1) of the Act. These Rules do not provide that if a complaint is dismissed in default by the District Forum under rule 4(8) or by the State commission under Rule 8(8) of the Rules, a second complaint would not lie. Thus, there is no provision parallel to the provision contained in Order 9. Rule 9(1) CPC which contains a prohibition that if a suit is dismissed in default of the plaintiff under Order 9, Rule 8, a second suit on the same cause of action would not lie. That being so, the rule of prohibition contained in Order 9, Rule 9(1) CPC cannot be extended to the proceedings before the District Forum or the State Commission. The fact that the case was not decided on merits and was dismissed in default of non-appearance of the complainant cannot be overlooked and, therefore, it would be permissible to file a second complaint explaining why the earlier complaint could not be pursued and was dismissed in default. 17. But that is not the end of the matter. Mahmood, J. in his dissenting judgment in the Full Bench case of Narsingh Das v. Mangal Dubey & Ors. , ILR (5) Allahabad 163, observed: "The Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle, prohibitions cannot be presumed, and in the present case, therefore, it rests upon the defendants to show that the suit in the form in which it has been brought is prohibited by the rules of procedure applicable to the Courts of Justice in India." 18. We only intend to invoke the spirit of the principle behind the above dictum in support of our view that every court or judicial body or authority which has a duty to decide a lis between two parties, inherently possesses the power to dismiss a case in default. where a case is called up for hearing and the party is not present, the court or the judicial or quasi-judicial body is under no obligation to keep the matter pending before it or to pursue the matter on behalf of the complainant who had instituted the proceedings. That is not the function of the court or, for that matter, of judicial or quasi-judicial body. In the absence of the complainant, therefore, the court will be well within its jurisdiction to dismiss the complaint for non-prosecution. so also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non-appearance of the complainant.19. We cannot also lose sight of the fact that a complainant may harass a party by repeatedly filing the complaint against him. He may file a complaint, draw the opposite party to the State or National commission and then have the complaint dismissed for default. He may repeat the exercise again only to harass the defendant. this practice, or to put it a little sternly, these tactics would be intolerable for any authority under the Act. In such a situation, the District Forum or the State or National Commission would not be helpless and it would be open to them to dismiss the fresh complaint on the ground of abuse of the process available under the Act. They can, in that situation, legitimately invoke the principles of Order 8 Rule 9 C.P.C.20. In the instant case, the vital fact of there being an insurance cover in favour of the respondent is not disputed. the loss suffered by the respondent is not disputed and the claim of the respondent is also not questioned. the only point urged before the State Commission as also before the National Commission and, for the matter, before us is that on account of the first complaint having been dismissed in default and the complaint having not been restored, the second complaint would not lie. The interest of justice, in our opinion, cannot be defeated by this rule of technically. The rules of procedure, as has been laid down by this court a number of times are intended to serve the ends of justice and not to defeat the dispensation of justice. the respondent had suffered loss which was squarely covered by the Policy of Insurance granted by the appellant. Since his claim is not being questioned before us on merits and is being sought to be defeated on the technical plea referred to above. We are not prepared to interfere with the orders passed by the District Forum, the State Commission and the National Commission, particularly as it is stated before us that the whole of the claim amount has already been paid to the respondent.
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0
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10. We have already indicated above that the Code of Civil Procedure has been applied to the proceedings under the consumer Protection Act only to a limited extent. If the intention of the Legislature was to apply the provisions of Order 9 also to the proceedings under the Consumer Protection Act, it would have clearly provided in the Act that the provisions of Order 9 will also be applicable to the proceedings before the District Forum or the State Commission or for the matter, before the national Commission. If the Legislature itself did not apply the rule of prohibition contained in Order 9, Rule 9(1), it will be difficult for the Courts to extend that provision to the proceedings under the Act.This Rule is in identical terms with(8) of Rule 4 and(8) of rule 8. Under thisthe appeal filed before the State Commission against the order of the District Forum, can be dismissed in default or the State Commission may in its discretion dispose it of on merits. Similar power has been given to the National commission under Rule 15(6) of the rules made by the Central government under Section 30(1) of the Act. These Rules do not provide that if a complaint is dismissed in default by the District Forum under rule 4(8) or by the State commission under Rule 8(8) of the Rules, a second complaint would not lie. Thus, there is no provision parallel to the provision contained in Order 9. Rule 9(1) CPC which contains a prohibition that if a suit is dismissed in default of the plaintiff under Order 9, Rule 8, a second suit on the same cause of action would not lie. That being so, the rule of prohibition contained in Order 9, Rule 9(1) CPC cannot be extended to the proceedings before the District Forum or the State Commission. The fact that the case was not decided on merits and was dismissed in default ofof the complainant cannot be overlooked and, therefore, it would be permissible to file a second complaint explaining why the earlier complaint could not be pursued and was dismissed in default.We only intend to invoke the spirit of the principle behind the above dictum in support of our view that every court or judicial body or authority which has a duty to decide a lis between two parties, inherently possesses the power to dismiss a case in default. where a case is called up for hearing and the party is not present, the court or the judicial orbody is under no obligation to keep the matter pending before it or to pursue the matter on behalf of the complainant who had instituted the proceedings. That is not the function of the court or, for that matter, of judicial orbody. In the absence of the complainant, therefore, the court will be well within its jurisdiction to dismiss the complaint forso also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for theof the complainant.19. We cannot also lose sight of the fact that a complainant may harass a party by repeatedly filing the complaint against him. He may file a complaint, draw the opposite party to the State or National commission and then have the complaint dismissed for default. He may repeat the exercise again only to harass the defendant. this practice, or to put it a little sternly, these tactics would be intolerable for any authority under the Act. In such a situation, the District Forum or the State or National Commission would not be helpless and it would be open to them to dismiss the fresh complaint on the ground of abuse of the process available under the Act. They can, in that situation, legitimately invoke the principles of Order 8 Rule 9 C.P.C.20. In the instant case, the vital fact of there being an insurance cover in favour of the respondent is not disputed. the loss suffered by the respondent is not disputed and the claim of the respondent is also not questioned. the only point urged before the State Commission as also before the National Commission and, for the matter, before us is that on account of the first complaint having been dismissed in default and the complaint having not been restored, the second complaint would not lie. The interest of justice, in our opinion, cannot be defeated by this rule of technically. The rules of procedure, as has been laid down by this court a number of times are intended to serve the ends of justice and not to defeat the dispensation of justice. the respondent had suffered loss which was squarely covered by the Policy of Insurance granted by the appellant. Since his claim is not being questioned before us on merits and is being sought to be defeated on the technical plea referred to above. We are not prepared to interfere with the orders passed by the District Forum, the State Commission and the National Commission, particularly as it is stated before us that the whole of the claim amount has already been paid to the respondent.
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Juggilal Kamlapat Vs. Pratapmal Rameshwar | appellant and the respondent which will be referred to presently and the contracts were entered into in the standard I.J.M.A. Contract forms. The fact that 3 contracts relating to two deliveries have been accepted show that the respondent was following the practice prevalent in Calcutta by respondent agreed to buy from the appellant and the appellant agreed to sell to the respondent 3, 00, 000 yards of hessian at Rs. 74/- per 100 yards deliverable in equal installments in April, May and June. It is alleged in Paragraph 14 of the plaint that he had duly delivered the delivery orders and the respondent paid for and took delivery of the same. But the respondent wrongfully failed and neglected to pay and take delivery of pucca Mills Delivery Orders relating to goods deliverable in May and June, 1952. In the written statement the respondent stated that the delivery orders delivered by the appellant were paid for and taken delivery of by the respondent before the relevant contract was discovered to be void. In the written statement the respondent did not deny that the appellant duly delivered t he delivery orders and the respondent paid for and took delivery of the same but pleaded that he paid and took delivery before he discovered that the relevant contract was void. It is significant that the attack was on the contract on the ground that it became void because of the West Bengal Act V of 1950. There is no challenge against the delivery order. The contention of the appellant that the delivery orders relating to the present suit were the usual delivery orders which were prevalent in the Jute Trade in Calcutta appears probable. No specific plea that the delivery orders relating to the suit were different from the delivery orders which the respondent accepted regarding the April delivery was raised nor was it contended that the delivery orders which lie accepted did not contain the restrictions requiring registration and giving of an undertaking. In the additional written statement there is no specific reference to Paragraph 14 of the plaint.Another contract was entered into between the appellant and the respondent on 19th April, 1952, whereby the respondent agreed to buy from the appellant and the appellant agreed to sell to the respondent 90, 000 bags of B Twills at Rs. 155/- per 1 00 bags deliverable in June, 1952. The contract was in the Standard I.J.M.A. Contract Forms. In Paragraph 18 of the plaint it is alleged that on the due date the plaintiff duly tendered the pucca Delivery Orders in respect of the goods deliverable in June, 1952, and the respondent failed and neglected to accept and pay for the goods. Regarding this contract the defence in the written statement is in Paragraph 6 where it is stated that "the facts and/or validity of the alleged tender and/or the alleged resale and/or the alleged notice are denied". There is no reference about the transactions in the additional written statement.raking into account the fact that the appellant as well as the respondent were engaging themselves in the Jute Trade in Calcutta and were following generally the practice of the Jute Mills Association and had entered into various contracts and having business relationship, the conclusion seems to be irresistible that the respondent was familiar with the delivery order with its conditions and accepted it as being in use in the ordinary course of business. It is difficult to accept the plea that the delivery order was not negotiable or that it was not in the terms of the contract and that it would not have enabled him to take possession of the goods as he had to fulfill certain other conditions as getting himself registered with the Mill and giving an undertaking as required. From these circumstances it is clear that the delivery orders were according to the terms of the contract and the respondent himself was aware of them. The plea that the delivery orders are not in accordance with the contract and that the conditions imposed amount to a new agreement are all belated pleas put forward to avoid the liability.This aspect of the case was not brought to the notice of the trial Judge and the appellate court. The learned trial Judge held that the appellant had not raised any plea of estoppel and therefore cannot rely on the failure of the respondent to point out the defects in the delivery observed as follows:"The plaintiffs contention was that under the contract the tender of delivery orders , namely, Mill Pucca Delivery Orders, was a valid tender according to the contract and in, any event was proper tender by virtue of trade customs and understood and accepted Mills pucca delivery orders as delivery orders and that the defendant had accepted mills pucca delivery orders and paid therefore with respect to certain deliveries under the contracts in question. It was also contended on behalf of the plaintiff that in some of the correspondence the defendant alleged that as the plaintiff failed to tender mills pucca delivery orders, the contra ct was cancelled and, therefore, there was in the correspondence never any contention on behalf of the defendant that mills pucca delivery orders were not proper tender. No ca se of estoppel was pleaded and I am, therefore of opinion that the plaintiff cannot raise any such plea of estoppel."33. The question is not one of estoppel but the inference to be, drawn from the conduct of the respondent. The pleadings as well as the conduct lead one to the conclusion that the delivery orders were in accordance with the contract which the respondent accepted, as Mills pucca delivery orders. In the result apart from the questions of law which have been discussed in full by all the courts the appellant is entitled to succeed on the simple ground that he has established that in the cases in dispute the delivery orders were in accordance with the contracts. The is allowed with costs.ORDER34. In | 0[ds]The question is not one of estoppel but the inference to be, drawn from the conduct of the respondent. The pleadings as well as the conduct lead one to the conclusion that the delivery orders were in accordance with the contract which the respondent accepted, as Mills pucca delivery orders. In the result apart from the questions of law which have been discussed in full by all the courts the appellant is entitled to succeed on the simple ground that he has established that in the cases in dispute the delivery orders were in accordance with the contracts. The is allowed with costs. | 0 | 15,117 | 113 | ### 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:
appellant and the respondent which will be referred to presently and the contracts were entered into in the standard I.J.M.A. Contract forms. The fact that 3 contracts relating to two deliveries have been accepted show that the respondent was following the practice prevalent in Calcutta by respondent agreed to buy from the appellant and the appellant agreed to sell to the respondent 3, 00, 000 yards of hessian at Rs. 74/- per 100 yards deliverable in equal installments in April, May and June. It is alleged in Paragraph 14 of the plaint that he had duly delivered the delivery orders and the respondent paid for and took delivery of the same. But the respondent wrongfully failed and neglected to pay and take delivery of pucca Mills Delivery Orders relating to goods deliverable in May and June, 1952. In the written statement the respondent stated that the delivery orders delivered by the appellant were paid for and taken delivery of by the respondent before the relevant contract was discovered to be void. In the written statement the respondent did not deny that the appellant duly delivered t he delivery orders and the respondent paid for and took delivery of the same but pleaded that he paid and took delivery before he discovered that the relevant contract was void. It is significant that the attack was on the contract on the ground that it became void because of the West Bengal Act V of 1950. There is no challenge against the delivery order. The contention of the appellant that the delivery orders relating to the present suit were the usual delivery orders which were prevalent in the Jute Trade in Calcutta appears probable. No specific plea that the delivery orders relating to the suit were different from the delivery orders which the respondent accepted regarding the April delivery was raised nor was it contended that the delivery orders which lie accepted did not contain the restrictions requiring registration and giving of an undertaking. In the additional written statement there is no specific reference to Paragraph 14 of the plaint.Another contract was entered into between the appellant and the respondent on 19th April, 1952, whereby the respondent agreed to buy from the appellant and the appellant agreed to sell to the respondent 90, 000 bags of B Twills at Rs. 155/- per 1 00 bags deliverable in June, 1952. The contract was in the Standard I.J.M.A. Contract Forms. In Paragraph 18 of the plaint it is alleged that on the due date the plaintiff duly tendered the pucca Delivery Orders in respect of the goods deliverable in June, 1952, and the respondent failed and neglected to accept and pay for the goods. Regarding this contract the defence in the written statement is in Paragraph 6 where it is stated that "the facts and/or validity of the alleged tender and/or the alleged resale and/or the alleged notice are denied". There is no reference about the transactions in the additional written statement.raking into account the fact that the appellant as well as the respondent were engaging themselves in the Jute Trade in Calcutta and were following generally the practice of the Jute Mills Association and had entered into various contracts and having business relationship, the conclusion seems to be irresistible that the respondent was familiar with the delivery order with its conditions and accepted it as being in use in the ordinary course of business. It is difficult to accept the plea that the delivery order was not negotiable or that it was not in the terms of the contract and that it would not have enabled him to take possession of the goods as he had to fulfill certain other conditions as getting himself registered with the Mill and giving an undertaking as required. From these circumstances it is clear that the delivery orders were according to the terms of the contract and the respondent himself was aware of them. The plea that the delivery orders are not in accordance with the contract and that the conditions imposed amount to a new agreement are all belated pleas put forward to avoid the liability.This aspect of the case was not brought to the notice of the trial Judge and the appellate court. The learned trial Judge held that the appellant had not raised any plea of estoppel and therefore cannot rely on the failure of the respondent to point out the defects in the delivery observed as follows:"The plaintiffs contention was that under the contract the tender of delivery orders , namely, Mill Pucca Delivery Orders, was a valid tender according to the contract and in, any event was proper tender by virtue of trade customs and understood and accepted Mills pucca delivery orders as delivery orders and that the defendant had accepted mills pucca delivery orders and paid therefore with respect to certain deliveries under the contracts in question. It was also contended on behalf of the plaintiff that in some of the correspondence the defendant alleged that as the plaintiff failed to tender mills pucca delivery orders, the contra ct was cancelled and, therefore, there was in the correspondence never any contention on behalf of the defendant that mills pucca delivery orders were not proper tender. No ca se of estoppel was pleaded and I am, therefore of opinion that the plaintiff cannot raise any such plea of estoppel."33. The question is not one of estoppel but the inference to be, drawn from the conduct of the respondent. The pleadings as well as the conduct lead one to the conclusion that the delivery orders were in accordance with the contract which the respondent accepted, as Mills pucca delivery orders. In the result apart from the questions of law which have been discussed in full by all the courts the appellant is entitled to succeed on the simple ground that he has established that in the cases in dispute the delivery orders were in accordance with the contracts. The is allowed with costs.ORDER34. In
### Response:
0
### Explanation:
The question is not one of estoppel but the inference to be, drawn from the conduct of the respondent. The pleadings as well as the conduct lead one to the conclusion that the delivery orders were in accordance with the contract which the respondent accepted, as Mills pucca delivery orders. In the result apart from the questions of law which have been discussed in full by all the courts the appellant is entitled to succeed on the simple ground that he has established that in the cases in dispute the delivery orders were in accordance with the contracts. The is allowed with costs.
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Allahabad Bank Vs. Bengal Paper Mills Co. Ltd. | consideration. By the subsequent order of Court, the sale was set aside; but during the interregnum, the applicant had the benefit of the assets he had purchased. The other contracting party, the company in liquidation was deprived of the use of its assets. The creditors who held the properties as security were deprived of their right to deal with the security or to enjoy the benefits of the security during the interregnum. In fact, the securities available to the creditors were utilized by the auction purchaser-the applicant. In that situation, the applicant might have the obligation to account for the profits. Certainly, while rendering the main Judgment, this Court was conscious of all these aspects while ordering refund only of the purchase price deposited without providing for payment of interest to the purchaser but at the same time leaving it open to the purchaser to work out its claim for the expenses incurred by it before the Company Court. 13. As stated in Goff and Jones The Law of Restitution (sixth edition) the law of restitution is the law relating to all claims quasi contractual or otherwise, which are founded upon the principle of unjust enrichment. It will, therefore, be necessary to investigate that aspect even if we invoke Sections 70 and 72 of the Indian Contract Act. Even if we invoke Section 65 of the Contract Act, the advantages derived by each of the parties will have to determined and quantified in terms of money and any order in favour of the applicant can be made only after undertaking that exercise. This result cannot to achieved by seeking a clarification of the Judgment as now done. 14. It also appears to us that there was a change of position of the parties including the creditors, pursuant to the sale and the applicant being put in possession. In that context, the adequacy of consideration paid by the applicant will be a relevant consideration. As observed in Goff and Jones in paragraph 42-004, "neither common law nor equity normally inquires into the adequacy of the consideration which the purchaser provides. But such an enquiry would be central to any defence solely based on a defence of change of possession, for, it is a defence which operates to discharge, wholly or in part, a defendants duty to make restitution". Be it noted that the sale in favour of the applicant was set aside by this Court mainly on the ground that the consideration paid was grossly inadequate. 15. The upshot of the above discussion is that the prayer for clarification as made cannot be granted. The applications are liable to be dismissed. Hence, they are dismissed. I.A. Nos.13, 14 and 15 in C.A. No.4191 of 1991 16. I.A. No.13/2004 is an application filed by the Bengal Paper Mill Mazdoor Union, the Labour Union of the wound up industry, for a clarification of the Judgment dated 20.4.1999 by directing that the company in liquidation may be sold as a going concern. I.A. No.14 of 2004 is by the same Union seeking permission to file a supplementary affidavit in support of its above prayer. I.A.No.15 of 2004 is by the company which had made an offer for purchase of the assets of the company in liquidation "as is where is" praying for permission to intervene in I.A. No.13 of 2004 filed by the said Union. According to the Union, before the company court an offer had been made by M/s Madhuri Traders Ltd. for purchase of the assets of the company in liquidation as a going concern for a price of Rs.10 crores. But a counter offer was received from M/s. Zoom Traders and Reality Ltd., the applicant in I.A No.15 of 2004, for Rs.17.75 crores for the entire assets of the company in liquidation on "as is where is" basis. In this situation, the company court has directed the parties to get a clarification from this Court as to the mode in which the assets should be sold, whether as a going concern or as property "as is where is", meaning thereby that the purchase will be free to dispose of the land, machinery and other equipments as he pleaded. It is the submission of the Union that the workers of the Union will be benefited if the property is sold as a unit and a going concern and it is in that context that they have filed I.A. No.13 of 2004 for clarification. It is in that application that M/s Zoom Traders & Realty Ltd. wants to intervene, to press its claim for purchase of the assets "as is where is" but not with a view to run the industry or revive the industry.17. We find that these applications are misconceived. The learned company judge was also in error in directing the parties to seek a clarification from this Court. In liquidation, the assets had been sold by the liquidator and the sale was confirmed by the company court. But the same was set aside by this Court. This Court while setting aside the sale and issuing certain other directions, has very clearly directed that "that same shall be resold after a fresh valuation report thereof has been obtained, the reserved bid fixed and due advertisement published". Obviously, this Court intended that a proper price should be fetched for the assets of the company in liquidation. It has left the question to the company court. It is for the company court to take a decision on the fresh sale to be conducted by it. There is no question of any clarification of the directions of this Court. No need for such a clarification arises. The decision, at least in the first instance, has necessarily to be that of the company court as to the mode and manner of sale and the price at which it is to be sold. In this situation, we are satisfied that these applications filed in this Court are misconceived and they are liable to be dismissed. 18. | 0[ds]Learned counsel for the applicant relied on the decision in Motors & Investment Ltd. vs. New Bank of India and others (1997 (11) SCC 271 ) and submitted that in that case the Court ordered payment of interest to the purchaser on the sale being set aside. On an examination of paragraph 6 of the said decision, it is seen that the question was not discussed as such. But the Court did order the interest earned by the purchase price to be refunded to the purchaser or in the alternative to pay interest on the amount at 18 per cent per annum. In the case of Central Bank of India vs. Ravindra and others (2002 (1) SCC 367 ) this Court discussed the concept of interest to point out that it was the payment fixed by agreement or allowed by law for use or detention of money. In other words, what was indicated was that interest was really compensation for the use of the money which the purchaser was deprived of. Going by the principle of compensation indicated in the said Judgment,the question would arise whether the applicant, in the circumstances of this case, when it had enjoyed the assets for about ten years on deposit of the purchase price, would be entitled to any compensation at all, or to compensation with an obligation to account for the profits, an issue, that has to be adjudicated in an appropriate manner and not certainly while considering an application for clarification.I.A. No.13/2004 is an application filed by the Bengal Paper Mill Mazdoor Union, the Labour Union of the wound up industry, for a clarification of the Judgment dated 20.4.1999 by directing that the company in liquidation may be sold as a going concern. I.A. No.14 of 2004 is by the same Union seeking permission to file a supplementary affidavit in support of its above prayer. I.A.No.15 of 2004 is by the company which had made an offer for purchase of the assets of the company in liquidation "as is where is" praying for permission to intervene in I.A. No.13 of 2004 filed by the said Union. According to the Union, before the company court an offer had been made by M/s Madhuri Traders Ltd. for purchase of the assets of the company in liquidation as a going concern for a price of Rs.10 crores. But a counter offer was received from M/s. Zoom Traders and Reality Ltd., the applicant in I.A No.15 of 2004, for Rs.17.75 crores for the entire assets of the company in liquidation on "as is where is" basis. In this situation, the company court has directed the parties to get a clarification from this Court as to the mode in which the assets should be sold, whether as a going concern or as property "as is where is", meaning thereby that the purchase will be free to dispose of the land, machinery and other equipments as he pleaded. It is the submission of the Union that the workers of the Union will be benefited if the property is sold as a unit and a going concern and it is in that context that they have filed I.A. No.13 of 2004 for clarification. It is in that application that M/s Zoom Traders & Realty Ltd. wants to intervene, to press its claim for purchase of the assets "as is where is" but not with a view to run the industry or revive the industry.17. We find that these applications are misconceived. The learned company judge was also in error in directing the parties to seek a clarification from this Court. In liquidation, the assets had been sold by the liquidator and the sale was confirmed by the company court. But the same was set aside by this Court. This Court while setting aside the sale and issuing certain other directions, has very clearly directed that "that same shall be resold after a fresh valuation report thereof has been obtained, the reserved bid fixed and due advertisement published". Obviously, this Court intended that a proper price should be fetched for the assets of the company in liquidation. It has left the question to the company court. It is for the company court to take a decision on the fresh sale to be conducted by it. There is no question of any clarification of the directions of this Court. No need for such a clarification arises. The decision, at least in the first instance, has necessarily to be that of the company court as to the mode and manner of sale and the price at which it is to be sold. In this situation, we are satisfied that these applications filed in this Court are misconceived and they are liable to be dismissed. | 0 | 3,898 | 869 | ### 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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consideration. By the subsequent order of Court, the sale was set aside; but during the interregnum, the applicant had the benefit of the assets he had purchased. The other contracting party, the company in liquidation was deprived of the use of its assets. The creditors who held the properties as security were deprived of their right to deal with the security or to enjoy the benefits of the security during the interregnum. In fact, the securities available to the creditors were utilized by the auction purchaser-the applicant. In that situation, the applicant might have the obligation to account for the profits. Certainly, while rendering the main Judgment, this Court was conscious of all these aspects while ordering refund only of the purchase price deposited without providing for payment of interest to the purchaser but at the same time leaving it open to the purchaser to work out its claim for the expenses incurred by it before the Company Court. 13. As stated in Goff and Jones The Law of Restitution (sixth edition) the law of restitution is the law relating to all claims quasi contractual or otherwise, which are founded upon the principle of unjust enrichment. It will, therefore, be necessary to investigate that aspect even if we invoke Sections 70 and 72 of the Indian Contract Act. Even if we invoke Section 65 of the Contract Act, the advantages derived by each of the parties will have to determined and quantified in terms of money and any order in favour of the applicant can be made only after undertaking that exercise. This result cannot to achieved by seeking a clarification of the Judgment as now done. 14. It also appears to us that there was a change of position of the parties including the creditors, pursuant to the sale and the applicant being put in possession. In that context, the adequacy of consideration paid by the applicant will be a relevant consideration. As observed in Goff and Jones in paragraph 42-004, "neither common law nor equity normally inquires into the adequacy of the consideration which the purchaser provides. But such an enquiry would be central to any defence solely based on a defence of change of possession, for, it is a defence which operates to discharge, wholly or in part, a defendants duty to make restitution". Be it noted that the sale in favour of the applicant was set aside by this Court mainly on the ground that the consideration paid was grossly inadequate. 15. The upshot of the above discussion is that the prayer for clarification as made cannot be granted. The applications are liable to be dismissed. Hence, they are dismissed. I.A. Nos.13, 14 and 15 in C.A. No.4191 of 1991 16. I.A. No.13/2004 is an application filed by the Bengal Paper Mill Mazdoor Union, the Labour Union of the wound up industry, for a clarification of the Judgment dated 20.4.1999 by directing that the company in liquidation may be sold as a going concern. I.A. No.14 of 2004 is by the same Union seeking permission to file a supplementary affidavit in support of its above prayer. I.A.No.15 of 2004 is by the company which had made an offer for purchase of the assets of the company in liquidation "as is where is" praying for permission to intervene in I.A. No.13 of 2004 filed by the said Union. According to the Union, before the company court an offer had been made by M/s Madhuri Traders Ltd. for purchase of the assets of the company in liquidation as a going concern for a price of Rs.10 crores. But a counter offer was received from M/s. Zoom Traders and Reality Ltd., the applicant in I.A No.15 of 2004, for Rs.17.75 crores for the entire assets of the company in liquidation on "as is where is" basis. In this situation, the company court has directed the parties to get a clarification from this Court as to the mode in which the assets should be sold, whether as a going concern or as property "as is where is", meaning thereby that the purchase will be free to dispose of the land, machinery and other equipments as he pleaded. It is the submission of the Union that the workers of the Union will be benefited if the property is sold as a unit and a going concern and it is in that context that they have filed I.A. No.13 of 2004 for clarification. It is in that application that M/s Zoom Traders & Realty Ltd. wants to intervene, to press its claim for purchase of the assets "as is where is" but not with a view to run the industry or revive the industry.17. We find that these applications are misconceived. The learned company judge was also in error in directing the parties to seek a clarification from this Court. In liquidation, the assets had been sold by the liquidator and the sale was confirmed by the company court. But the same was set aside by this Court. This Court while setting aside the sale and issuing certain other directions, has very clearly directed that "that same shall be resold after a fresh valuation report thereof has been obtained, the reserved bid fixed and due advertisement published". Obviously, this Court intended that a proper price should be fetched for the assets of the company in liquidation. It has left the question to the company court. It is for the company court to take a decision on the fresh sale to be conducted by it. There is no question of any clarification of the directions of this Court. No need for such a clarification arises. The decision, at least in the first instance, has necessarily to be that of the company court as to the mode and manner of sale and the price at which it is to be sold. In this situation, we are satisfied that these applications filed in this Court are misconceived and they are liable to be dismissed. 18.
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Learned counsel for the applicant relied on the decision in Motors & Investment Ltd. vs. New Bank of India and others (1997 (11) SCC 271 ) and submitted that in that case the Court ordered payment of interest to the purchaser on the sale being set aside. On an examination of paragraph 6 of the said decision, it is seen that the question was not discussed as such. But the Court did order the interest earned by the purchase price to be refunded to the purchaser or in the alternative to pay interest on the amount at 18 per cent per annum. In the case of Central Bank of India vs. Ravindra and others (2002 (1) SCC 367 ) this Court discussed the concept of interest to point out that it was the payment fixed by agreement or allowed by law for use or detention of money. In other words, what was indicated was that interest was really compensation for the use of the money which the purchaser was deprived of. Going by the principle of compensation indicated in the said Judgment,the question would arise whether the applicant, in the circumstances of this case, when it had enjoyed the assets for about ten years on deposit of the purchase price, would be entitled to any compensation at all, or to compensation with an obligation to account for the profits, an issue, that has to be adjudicated in an appropriate manner and not certainly while considering an application for clarification.I.A. No.13/2004 is an application filed by the Bengal Paper Mill Mazdoor Union, the Labour Union of the wound up industry, for a clarification of the Judgment dated 20.4.1999 by directing that the company in liquidation may be sold as a going concern. I.A. No.14 of 2004 is by the same Union seeking permission to file a supplementary affidavit in support of its above prayer. I.A.No.15 of 2004 is by the company which had made an offer for purchase of the assets of the company in liquidation "as is where is" praying for permission to intervene in I.A. No.13 of 2004 filed by the said Union. According to the Union, before the company court an offer had been made by M/s Madhuri Traders Ltd. for purchase of the assets of the company in liquidation as a going concern for a price of Rs.10 crores. But a counter offer was received from M/s. Zoom Traders and Reality Ltd., the applicant in I.A No.15 of 2004, for Rs.17.75 crores for the entire assets of the company in liquidation on "as is where is" basis. In this situation, the company court has directed the parties to get a clarification from this Court as to the mode in which the assets should be sold, whether as a going concern or as property "as is where is", meaning thereby that the purchase will be free to dispose of the land, machinery and other equipments as he pleaded. It is the submission of the Union that the workers of the Union will be benefited if the property is sold as a unit and a going concern and it is in that context that they have filed I.A. No.13 of 2004 for clarification. It is in that application that M/s Zoom Traders & Realty Ltd. wants to intervene, to press its claim for purchase of the assets "as is where is" but not with a view to run the industry or revive the industry.17. We find that these applications are misconceived. The learned company judge was also in error in directing the parties to seek a clarification from this Court. In liquidation, the assets had been sold by the liquidator and the sale was confirmed by the company court. But the same was set aside by this Court. This Court while setting aside the sale and issuing certain other directions, has very clearly directed that "that same shall be resold after a fresh valuation report thereof has been obtained, the reserved bid fixed and due advertisement published". Obviously, this Court intended that a proper price should be fetched for the assets of the company in liquidation. It has left the question to the company court. It is for the company court to take a decision on the fresh sale to be conducted by it. There is no question of any clarification of the directions of this Court. No need for such a clarification arises. The decision, at least in the first instance, has necessarily to be that of the company court as to the mode and manner of sale and the price at which it is to be sold. In this situation, we are satisfied that these applications filed in this Court are misconceived and they are liable to be dismissed.
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M. Padmanabha Setty Vs. K. P. Papiah Setty | cases in which such relationship terminated under the provisions of the Transfer of Property Act, continues subject to the provisions of the Act. The rights of the tenants as well as the landlord are defined. The tenant under the Act has a right to possession unless and until he is evicted under the provisions of the Act. Under the provisions of the Act, a landlord will not be entitled to the possession of his non-residential building, if he obtains an order for eviction against another tenant in respect of another non-residential building, or if he is in possession of another non-residential building as a tenant; for in either case he is entitled to possession of that premises. The words used in the section, viz., "to the possession of which he is entitled" are wide and I do not see any reason why the latter category should be excluded from the express words used which in their ordinary meaning take in that class." "It was argued that a statutory immunity is different from a right to possession. But in my view a statutory immunity is not inconsistent with a right to possession. The statutory immunity itself creates a right in him to continue in possession till he is evicted under the provisions of the Act." 7. The Mysore High Court dissented from this decision of the Madras High Court, and the reasoning of Ahmed Ali Khan, J., in 1962-40 Mys LJ 760, is as under:"After a careful consideration of the arguments advanced before me, I am of the opinion that the provision of the Act on the strength of which a tenant may resist the landlords claim to evict him cannot be described as a right to possession, but only as a statutory immunity from eviction as observed by the Federal Court in the case Kai Khushrao Bezorijee Capadia v. Bai Jerbai, AIR 1949 EC 124 (128). It appears that his Lordship in the Madras case distinguished the said observations in the said case of the Federal Court by stating that a statutory immunity is not inconsistent with the right to possession and that such immunity may itself create a right. The right to immunity from eviction involves a negative element in it. In other words it restricts the right of possession of the landlord. Hence, it cannot be construed to have an effect of creating a right of possession to a tenant. Though the statutory immunity from eviction may not be consistent with the right to possession, the fact remains in view of the inherent element involved in both the rights, that the immunity from eviction cannot be equated to the right to possession. Therefore, with great respect, I am of the view that we will not be justified in adopting the strict view while interpreting the words which occur in S. 8 (3) (a) (ii) of the Mysore House Rent and Accommodation Control Act, as taken in the Madras ruling cited above." 8. In our opinion, with great respect to Subba Rao, J., Ahmed Ali Khan, J., arrived at the correct conclusion. A tenant who can be evicted under the conditions prescribed in S. 8 (2) of the Act cannot be said, in our view, to be entitled to the possession of the premises of which he is a tenant. No doubt he cannot be evicted till one or more of the conditions prescribed by the section are fulfilled, but it is difficult to equate his right to stay in the premises till he is evicted to an entitlement of the possession of the premises. Section 8 (3) (a) (ii) deals with two types of cases; first where the landlord is in occupation of a non-residential building which is owned by him, and secondly, a non-residential building of which he is in occupation not as a landlord but otherwise. The object of the Act is to prevent unreasonable evictions of tenants. Can it be said that the Legislature is considering it to be unreasonable for a landlord to shift to his own premises while he is in occupation of tenanted premises over which he has not an absolute right of possession but only a right to remain in possession till one of the conditions in S. 8 (2) is satisfied, and over one of which he has no control? For instance, the landlord may require the premises for repairs or reconstruction or the neighbours may complain that the tenant is guilty of nuisance or annoyance, or the landlord may think that the tenant has committed some acts of waste as are likely to impair materially the value or utility of the house. If any of these conditions is proved, he is liable to be evicted. In our view, in the context the words "entitled to possession" have a more positive content and are more akin to the right of possession which an owner has in respect of the building owned and occupied by him. 9. In conclusion we are of the view that the High Court was right in holding that the Additional District Judge erred in not following the decision of the Mysore High Court in 1962-40 Mys LJ 760. 10. There is no force in the second point raised by the learned counsel of the tenant. It is true that the jurisdiction of a High Court under provisions similar to S. 17 of the Act is limited, but we cannot say that the High Court was wrong in holding that the Additional District Judge acted with material irregularity in not following the decision of the Mysore High Court when that decision had been rendered in a case arising from an earlier order of the same Additional District Judge. It may be that this decision was not pointed out to the Additional District Judge but we cannot, in exercise of our jurisdiction under Art. 136 of the Constitution, say that the High Court should not have set aside the order of the Additional District Judge on this ground. | 0[ds]8. In our opinion, with great respect to Subba Rao, J., Ahmed Ali Khan, J., arrived at the correct conclusion. A tenant who can be evicted under the conditions prescribed in S. 8 (2) of the Act cannot be said, in our view, to be entitled to the possession of the premises of which he is a tenant. No doubt he cannot be evicted till one or more of the conditions prescribed by the section are fulfilled, but it is difficult to equate his right to stay in the premises till he is evicted to an entitlement of the possession of the premises. Section 8 (3) (a) (ii) deals with two types of cases; first where the landlord is in occupation of a non-residential building which is owned by him, and secondly, a non-residential building of which he is in occupation not as a landlord but otherwise. The object of the Act is to prevent unreasonable evictions of tenants. Can it be said that the Legislature is considering it to be unreasonable for a landlord to shift to his own premises while he is in occupation of tenanted premises over which he has not an absolute right of possession but only a right to remain in possession till one of the conditions in S. 8 (2) is satisfied, and over one of which he has no control? For instance, the landlord may require the premises for repairs or reconstruction or the neighbours may complain that the tenant is guilty of nuisance or annoyance, or the landlord may think that the tenant has committed some acts of waste as are likely to impair materially the value or utility of the house. If any of these conditions is proved, he is liable to be evicted. In our view, in the context the words "entitled to possession" have a more positive content and are more akin to the right of possession which an owner has in respect of the building owned and occupied by him9. In conclusion we are of the view that the High Court was right in holding that the Additional District Judge erred in not following the decision of the Mysore High Court in 1962-40 Mys LJ 76010. There is no force in the second point raised by the learned counsel of the tenant. It is true that the jurisdiction of a High Court under provisions similar to S. 17 of the Act is limited, but we cannot say that the High Court was wrong in holding that the Additional District Judge acted with material irregularity in not following the decision of the Mysore High Court when that decision had been rendered in a case arising from an earlier order of the same Additional District Judge. It may be that this decision was not pointed out to the Additional District Judge but we cannot, in exercise of our jurisdiction under Art. 136 of the Constitution, say that the High Court should not have set aside the order of the Additional District Judge on this ground. | 0 | 2,799 | 559 | ### 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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cases in which such relationship terminated under the provisions of the Transfer of Property Act, continues subject to the provisions of the Act. The rights of the tenants as well as the landlord are defined. The tenant under the Act has a right to possession unless and until he is evicted under the provisions of the Act. Under the provisions of the Act, a landlord will not be entitled to the possession of his non-residential building, if he obtains an order for eviction against another tenant in respect of another non-residential building, or if he is in possession of another non-residential building as a tenant; for in either case he is entitled to possession of that premises. The words used in the section, viz., "to the possession of which he is entitled" are wide and I do not see any reason why the latter category should be excluded from the express words used which in their ordinary meaning take in that class." "It was argued that a statutory immunity is different from a right to possession. But in my view a statutory immunity is not inconsistent with a right to possession. The statutory immunity itself creates a right in him to continue in possession till he is evicted under the provisions of the Act." 7. The Mysore High Court dissented from this decision of the Madras High Court, and the reasoning of Ahmed Ali Khan, J., in 1962-40 Mys LJ 760, is as under:"After a careful consideration of the arguments advanced before me, I am of the opinion that the provision of the Act on the strength of which a tenant may resist the landlords claim to evict him cannot be described as a right to possession, but only as a statutory immunity from eviction as observed by the Federal Court in the case Kai Khushrao Bezorijee Capadia v. Bai Jerbai, AIR 1949 EC 124 (128). It appears that his Lordship in the Madras case distinguished the said observations in the said case of the Federal Court by stating that a statutory immunity is not inconsistent with the right to possession and that such immunity may itself create a right. The right to immunity from eviction involves a negative element in it. In other words it restricts the right of possession of the landlord. Hence, it cannot be construed to have an effect of creating a right of possession to a tenant. Though the statutory immunity from eviction may not be consistent with the right to possession, the fact remains in view of the inherent element involved in both the rights, that the immunity from eviction cannot be equated to the right to possession. Therefore, with great respect, I am of the view that we will not be justified in adopting the strict view while interpreting the words which occur in S. 8 (3) (a) (ii) of the Mysore House Rent and Accommodation Control Act, as taken in the Madras ruling cited above." 8. In our opinion, with great respect to Subba Rao, J., Ahmed Ali Khan, J., arrived at the correct conclusion. A tenant who can be evicted under the conditions prescribed in S. 8 (2) of the Act cannot be said, in our view, to be entitled to the possession of the premises of which he is a tenant. No doubt he cannot be evicted till one or more of the conditions prescribed by the section are fulfilled, but it is difficult to equate his right to stay in the premises till he is evicted to an entitlement of the possession of the premises. Section 8 (3) (a) (ii) deals with two types of cases; first where the landlord is in occupation of a non-residential building which is owned by him, and secondly, a non-residential building of which he is in occupation not as a landlord but otherwise. The object of the Act is to prevent unreasonable evictions of tenants. Can it be said that the Legislature is considering it to be unreasonable for a landlord to shift to his own premises while he is in occupation of tenanted premises over which he has not an absolute right of possession but only a right to remain in possession till one of the conditions in S. 8 (2) is satisfied, and over one of which he has no control? For instance, the landlord may require the premises for repairs or reconstruction or the neighbours may complain that the tenant is guilty of nuisance or annoyance, or the landlord may think that the tenant has committed some acts of waste as are likely to impair materially the value or utility of the house. If any of these conditions is proved, he is liable to be evicted. In our view, in the context the words "entitled to possession" have a more positive content and are more akin to the right of possession which an owner has in respect of the building owned and occupied by him. 9. In conclusion we are of the view that the High Court was right in holding that the Additional District Judge erred in not following the decision of the Mysore High Court in 1962-40 Mys LJ 760. 10. There is no force in the second point raised by the learned counsel of the tenant. It is true that the jurisdiction of a High Court under provisions similar to S. 17 of the Act is limited, but we cannot say that the High Court was wrong in holding that the Additional District Judge acted with material irregularity in not following the decision of the Mysore High Court when that decision had been rendered in a case arising from an earlier order of the same Additional District Judge. It may be that this decision was not pointed out to the Additional District Judge but we cannot, in exercise of our jurisdiction under Art. 136 of the Constitution, say that the High Court should not have set aside the order of the Additional District Judge on this ground.
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8. In our opinion, with great respect to Subba Rao, J., Ahmed Ali Khan, J., arrived at the correct conclusion. A tenant who can be evicted under the conditions prescribed in S. 8 (2) of the Act cannot be said, in our view, to be entitled to the possession of the premises of which he is a tenant. No doubt he cannot be evicted till one or more of the conditions prescribed by the section are fulfilled, but it is difficult to equate his right to stay in the premises till he is evicted to an entitlement of the possession of the premises. Section 8 (3) (a) (ii) deals with two types of cases; first where the landlord is in occupation of a non-residential building which is owned by him, and secondly, a non-residential building of which he is in occupation not as a landlord but otherwise. The object of the Act is to prevent unreasonable evictions of tenants. Can it be said that the Legislature is considering it to be unreasonable for a landlord to shift to his own premises while he is in occupation of tenanted premises over which he has not an absolute right of possession but only a right to remain in possession till one of the conditions in S. 8 (2) is satisfied, and over one of which he has no control? For instance, the landlord may require the premises for repairs or reconstruction or the neighbours may complain that the tenant is guilty of nuisance or annoyance, or the landlord may think that the tenant has committed some acts of waste as are likely to impair materially the value or utility of the house. If any of these conditions is proved, he is liable to be evicted. In our view, in the context the words "entitled to possession" have a more positive content and are more akin to the right of possession which an owner has in respect of the building owned and occupied by him9. In conclusion we are of the view that the High Court was right in holding that the Additional District Judge erred in not following the decision of the Mysore High Court in 1962-40 Mys LJ 76010. There is no force in the second point raised by the learned counsel of the tenant. It is true that the jurisdiction of a High Court under provisions similar to S. 17 of the Act is limited, but we cannot say that the High Court was wrong in holding that the Additional District Judge acted with material irregularity in not following the decision of the Mysore High Court when that decision had been rendered in a case arising from an earlier order of the same Additional District Judge. It may be that this decision was not pointed out to the Additional District Judge but we cannot, in exercise of our jurisdiction under Art. 136 of the Constitution, say that the High Court should not have set aside the order of the Additional District Judge on this ground.
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State Of Punjab Vs. Pritam Singh Etc. Etc | of the evidence led by the prosecution, we fell that the view taken by the High Court was not wrong. Apart from the circumstances mentioned by the High Court in its judgment there were certain important intrinsic circumstances which threw a good deal of doubt on the prosecution case. In the first place, it is admitted that there was serious enmity between the parties and there was sufficient motive for Pala Singh to have implicated the respondents at whose instance he was implicated in the murder of Toga Singh and eventually convicted to life imprisonment. Equally there was a motive for the respondents also to kill Pala Singh in order to wreck vengeance on him for having caused the death of the father of Gurmej Singh. Teja Singh and Bhan Singh. When the motives were thus equally balanced, the Court had to look to surrounding circumstances in order to find out the truth.5. One of the most extraordinary features of this case is that after Pala Singh left for the police station to lodge the F.I.R., Ajit Singh his brother whose wife and daughter had been killed stayed at the house though he had also witnessed the occurrence. He was, therefore, the most material witness to be examined in the case, because his near relations had been killed in his presence and yet Ajit Singh was not examined by the prosecution at all.6. Another important circumstances that militates against the prosecution version is that PW 4 Jaswant Kaur one of the eye witnesses clearly stated in her evidence that when Darbara Singh came to the place of occurrence soon after the occurrence she did not narrate the incident to him. Pala Singh had left for the police station and the only eye witness Jaswant Kaur who was present at the spot, for reasons best known to her, chose not to disclose the incident or the names of the assailants to Darbara Singh who was the only witness examined to corroborate the version of Pala Singh and Jaswant Kaur. Moreover, PW 5 Darbara Singh has stated in his evidence that he was informed about the occurrence and the names of the assailants by one Jita Sigh who, however, has not been examined. Thus the evidence of PW 5 Darbara Singh becomes valueless. In spite of the fact that to the prosecution Ajit Singh and Jita Singh were available to corroborate the eye witnesses, yet none of them was examined and the evidence of Darbara Singh PW 5 which remained was hearsay and, therefore, inadmissible.7. Another importance circumstances which throws doubt on the prosecution case is that although the party of the accused consisting of six person seems to have come variously armed, excepting the hand-grenade no other weapon appears to have been used in the offence, even though the hand-grenade missed the main target, namely, Pala Sigh. Although it is said that pistol-shots were fired by Gurmej Singh, yet there is no evidence to show that any wads or pellets were recovered from the place of occurrence or from near the pillar where Pala Singh had taken shelter. This circumstances, therefore, renders the story of pistol-shots having been fired by Gurmej Singh extremely doubtful. It is also not understandable why the other accused who had come armed with Gandasis did nothing at all, even though the object to kill Pala Singh had been foiled and there was sufficient opportunity for these persons to attack him with the Gandasis and to storm the place. This clearly shows that there was absolutely no occasion for the other accused to be armed with Gandasis and this has been introduced only as an embellishment to give colour to the gravity of the prosecution case.8. It is also not intelligible to us as to why, if the respondents chose to attack Pala Singhs house during day-break when there was sufficient light, they missed the target and having missed the same they made no attempt to kill Pala Singh at all although they were armed with hand-grenades, pistols and Gandasis. Such a story lends support to the suggestion of the defence based on the evidence of PW 9 Dalip Singh that probably the occurrence took place at about 4 a.m. when some assailants of the deceased placed a bomb near the cot of the deceased persons which having exploded caused fatal injuries to the deceased.9. The High Court has relied on the evidence of constable Dalip Singh PW 9 to prove the circumstance about the explosion. Dalip Singh PW 9 stated in his evidence that while he was on round he heard a sound of explosion of bomb at about 4 a.m. The only comment made by for the respondents against him was that Darbara Singh had filed a complaint against the victims alleging that he had taken utensils and one maund of grain. The witness denied this and no documentary evidence has been produced by the prosecution to show that the complaint was really filed and if so what action was taken thereon. In these circumstances, therefore, empty allegation made against the witness Dalip Singh is not sufficient to discredit his testimony, particularly when he appears to be a disinterested witness.10. Having regard to the cumulative effect of the circumstances mentioned above, the wholly interested and partisan nature of the testimony of the witnesses examined by the prosecution and the complete absence of corroborative evidence, which though in possession of the prosecution was not produced without any adequate explanation, we find ourselves in complete agreement with the reasons given by the High Court that the prosecution has not been able to prove its case beyond reasonable doubt. Furthermore, this appeal is directed against the order of acquittal passed by the High Court and unless there are special circumstances or grave errors committed by the High Court leading to serious miscarriage of justice, this Court would not interfere in special leave in order to set aside an order of acquittal, and that too in a murder case. | 0[ds]Pala Singh had left for the police station and the only eye witness Jaswant Kaur who was present at the spot, for reasons best known to her, chose not to disclose the incident or the names of the assailants to Darbara Singh who was the only witness examined to corroborate the version of Pala Singh and Jaswant Kaur. Moreover, PW 5 Darbara Singh has stated in his evidence that he was informed about the occurrence and the names of the assailants by one Jita Sigh who, however, has not been examined. Thus the evidence of PW 5 Darbara Singh becomes valueless. In spite of the fact that to the prosecution Ajit Singh and Jita Singh were available to corroborate the eye witnesses, yet none of them was examined and the evidence of Darbara Singh PW 5 which remained was hearsay and, therefore,these circumstances, therefore, empty allegation made against the witness Dalip Singh is not sufficient to discredit his testimony, particularly when he appears to be a disinterested witness.10. Having regard to the cumulative effect of the circumstances mentioned above, the wholly interested and partisan nature of the testimony of the witnesses examined by the prosecution and the complete absence of corroborative evidence, which though in possession of the prosecution was not produced without any adequate explanation, we find ourselves in complete agreement with the reasons given by the High Court that the prosecution has not been able to prove its case beyond reasonable doubt. Furthermore, this appeal is directed against the order of acquittal passed by the High Court and unless there are special circumstances or grave errors committed by the High Court leading to serious miscarriage of justice, this Court would not interfere in special leave in order to set aside an order of acquittal, and that too in a murder case. | 0 | 1,797 | 331 | ### Instruction:
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of the evidence led by the prosecution, we fell that the view taken by the High Court was not wrong. Apart from the circumstances mentioned by the High Court in its judgment there were certain important intrinsic circumstances which threw a good deal of doubt on the prosecution case. In the first place, it is admitted that there was serious enmity between the parties and there was sufficient motive for Pala Singh to have implicated the respondents at whose instance he was implicated in the murder of Toga Singh and eventually convicted to life imprisonment. Equally there was a motive for the respondents also to kill Pala Singh in order to wreck vengeance on him for having caused the death of the father of Gurmej Singh. Teja Singh and Bhan Singh. When the motives were thus equally balanced, the Court had to look to surrounding circumstances in order to find out the truth.5. One of the most extraordinary features of this case is that after Pala Singh left for the police station to lodge the F.I.R., Ajit Singh his brother whose wife and daughter had been killed stayed at the house though he had also witnessed the occurrence. He was, therefore, the most material witness to be examined in the case, because his near relations had been killed in his presence and yet Ajit Singh was not examined by the prosecution at all.6. Another important circumstances that militates against the prosecution version is that PW 4 Jaswant Kaur one of the eye witnesses clearly stated in her evidence that when Darbara Singh came to the place of occurrence soon after the occurrence she did not narrate the incident to him. Pala Singh had left for the police station and the only eye witness Jaswant Kaur who was present at the spot, for reasons best known to her, chose not to disclose the incident or the names of the assailants to Darbara Singh who was the only witness examined to corroborate the version of Pala Singh and Jaswant Kaur. Moreover, PW 5 Darbara Singh has stated in his evidence that he was informed about the occurrence and the names of the assailants by one Jita Sigh who, however, has not been examined. Thus the evidence of PW 5 Darbara Singh becomes valueless. In spite of the fact that to the prosecution Ajit Singh and Jita Singh were available to corroborate the eye witnesses, yet none of them was examined and the evidence of Darbara Singh PW 5 which remained was hearsay and, therefore, inadmissible.7. Another importance circumstances which throws doubt on the prosecution case is that although the party of the accused consisting of six person seems to have come variously armed, excepting the hand-grenade no other weapon appears to have been used in the offence, even though the hand-grenade missed the main target, namely, Pala Sigh. Although it is said that pistol-shots were fired by Gurmej Singh, yet there is no evidence to show that any wads or pellets were recovered from the place of occurrence or from near the pillar where Pala Singh had taken shelter. This circumstances, therefore, renders the story of pistol-shots having been fired by Gurmej Singh extremely doubtful. It is also not understandable why the other accused who had come armed with Gandasis did nothing at all, even though the object to kill Pala Singh had been foiled and there was sufficient opportunity for these persons to attack him with the Gandasis and to storm the place. This clearly shows that there was absolutely no occasion for the other accused to be armed with Gandasis and this has been introduced only as an embellishment to give colour to the gravity of the prosecution case.8. It is also not intelligible to us as to why, if the respondents chose to attack Pala Singhs house during day-break when there was sufficient light, they missed the target and having missed the same they made no attempt to kill Pala Singh at all although they were armed with hand-grenades, pistols and Gandasis. Such a story lends support to the suggestion of the defence based on the evidence of PW 9 Dalip Singh that probably the occurrence took place at about 4 a.m. when some assailants of the deceased placed a bomb near the cot of the deceased persons which having exploded caused fatal injuries to the deceased.9. The High Court has relied on the evidence of constable Dalip Singh PW 9 to prove the circumstance about the explosion. Dalip Singh PW 9 stated in his evidence that while he was on round he heard a sound of explosion of bomb at about 4 a.m. The only comment made by for the respondents against him was that Darbara Singh had filed a complaint against the victims alleging that he had taken utensils and one maund of grain. The witness denied this and no documentary evidence has been produced by the prosecution to show that the complaint was really filed and if so what action was taken thereon. In these circumstances, therefore, empty allegation made against the witness Dalip Singh is not sufficient to discredit his testimony, particularly when he appears to be a disinterested witness.10. Having regard to the cumulative effect of the circumstances mentioned above, the wholly interested and partisan nature of the testimony of the witnesses examined by the prosecution and the complete absence of corroborative evidence, which though in possession of the prosecution was not produced without any adequate explanation, we find ourselves in complete agreement with the reasons given by the High Court that the prosecution has not been able to prove its case beyond reasonable doubt. Furthermore, this appeal is directed against the order of acquittal passed by the High Court and unless there are special circumstances or grave errors committed by the High Court leading to serious miscarriage of justice, this Court would not interfere in special leave in order to set aside an order of acquittal, and that too in a murder case.
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Pala Singh had left for the police station and the only eye witness Jaswant Kaur who was present at the spot, for reasons best known to her, chose not to disclose the incident or the names of the assailants to Darbara Singh who was the only witness examined to corroborate the version of Pala Singh and Jaswant Kaur. Moreover, PW 5 Darbara Singh has stated in his evidence that he was informed about the occurrence and the names of the assailants by one Jita Sigh who, however, has not been examined. Thus the evidence of PW 5 Darbara Singh becomes valueless. In spite of the fact that to the prosecution Ajit Singh and Jita Singh were available to corroborate the eye witnesses, yet none of them was examined and the evidence of Darbara Singh PW 5 which remained was hearsay and, therefore,these circumstances, therefore, empty allegation made against the witness Dalip Singh is not sufficient to discredit his testimony, particularly when he appears to be a disinterested witness.10. Having regard to the cumulative effect of the circumstances mentioned above, the wholly interested and partisan nature of the testimony of the witnesses examined by the prosecution and the complete absence of corroborative evidence, which though in possession of the prosecution was not produced without any adequate explanation, we find ourselves in complete agreement with the reasons given by the High Court that the prosecution has not been able to prove its case beyond reasonable doubt. Furthermore, this appeal is directed against the order of acquittal passed by the High Court and unless there are special circumstances or grave errors committed by the High Court leading to serious miscarriage of justice, this Court would not interfere in special leave in order to set aside an order of acquittal, and that too in a murder case.
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Collector Of Bombay Vs. Municipal Corporation Of The City Of Bombay And Others | is whether, on the facts of this case, the Respondent Corporation has succeeded in establishing in itself a right in limitation of the right of the Government to assess the land in consequence of a specific limit to assessment having been established and preserved. There is no dispute that by reason of the non-compliance with the statutory formalities the Government Resolution of 1865 is not an effectual grant passing title in the land to the respondent Corporation and is not also an enforceable contract. On the other hand, there is no doubt as to the existence of an intention on the part of the Government to make and on the part of the Corporation to take a grant of the land in terms of the Resolution of 1865 including an undertaking by the Government not to charge any rent. Both parties acted on the basis of that Resolution and the predecessor in title of the Respondent Corporation went into possession of the land in question pursuant to the Government Resolution of 1865 and, acting upon the said Resolution and the terms contained therein, the Respondent Corporation and its predecessor in title spent considerable sums of money in leveling the site and erecting and maintaining the market buildings and have been in possession of the land for over 70 years. What, in the circumstances was the legal position of the respondent Corporation and its predecessor in title in relation to the land in question? They were in possession of the land to which they had no legal title at all.13. Therefore, the position of the respondent Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the respondent Corporation took possession of the land under the invalid grant. This possession has continued openly as of right and uninterruptedly for over 70 years and the respondent Corporation has acquired the limited title it and its predecessor in title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity, free from rent but only for the purposes of a market in terms of the Government Resolution of 1865. The immunity from the liability to pay rent is just as much an integral part or an in severable incident of the title so acquired as is the obligation to hold the land for the purposes of a market and for no other purpose. There is no question of acquisition by adverse possession of the Governments prerogative right to levy assessment. What the respondent Corporation has acquired is the legal right to hold the land in perpetuity free of rent for the specific purpose of erecting and maintaining a market upon the terms of the Government Resolution as if a legal grant had been a made to in. The right thus acquired includes, as part of it, an immunity from payment of rent which must necessarily constitute a right in limitation of the Governments right to assess in excess of the specific limit established and preserved by the Government Resolution within the meaning of S. 8 of the Bombay Act II [2] of 1876.It is true, as pointed out by the Privy Council in Kamalavahoojs Maharaj v. Collector of Bombay,(39 Bom. L. R. l046) (supra.) that the words of the section would appear to apply rather to the case of a limitation on the right to assess than to the case of a complete exemption from assessment but such a construction would not protect the case of total exemption which, as conceded in that very case, did in fact exist and were recognised and protected by virtue of the words of S. 8 of the Bombay Act II [2] of 1876. It has not been suggested before us that there are no cases of total exemption or that those cases are protected by any provision of law other than that of this very section. There is, therefore, no escape from the conclusion arrived at by the High Court, with which we concur, that the words of S. 8 would apply to a case where total exemption from assessment was granted. In other words, specific limit may be nil for the purposes of S. 8 of the Act.14. It was sought to be argued that even if the Government be precluded from enhancing the "rent" in view of the terms of the Government Resolution, it cannot be held to have disentitled itself from its prerogative right to assess "land revenue. This contention is sought to be founded on a distinction between "rent" and "land revenue." This contention, however, was not raised in the written statement and was not made the subject matter of any issue on which the parties went to trial and was never put forward before either of the Courts below. Indeed, in the letter of the Mayor of Bombay dated 22- 3-1939, to which reference has been made, it was clearly alleged that "the word "rent" was used in official documents with the greatest frequency with reference to, the land revenue leviable by the East India Company and later by the Government in the City of Bombay and in the Presidency " In the Governments reply dated 24-1-1940, also quoted above, this assertion was never repudiated or denied. In the premises, the appellant cannot be permitted at this stage to raise this contention founded on the supposed distinction, if any, between "rent" and "land revenue" and for the purpose of this case we must proceed on the basis that the word "rent" in the Government Resolution of 1865 was synonymous with or included "land revenue.”15. | 1[ds]Therefore, the position of the respondent Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the respondent Corporation took possession of the land under the invalid grant. This possession has continued openly as of right and uninterruptedly for over 70 years and the respondent Corporation has acquired the limited title it and its predecessor in title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity, free from rent but only for the purposes of a market in terms of the Government Resolution of 1865. The immunity from the liability to pay rent is just as much an integral part or an in severable incident of the title so acquired as is the obligation to hold the land for the purposes of a market and for no other purpose. There is no question of acquisition by adverse possession of the Governments prerogative right to levy assessment. What the respondent Corporation has acquired is the legal right to hold the land in perpetuity free of rent for the specific purpose of erecting and maintaining a market upon the terms of the Government Resolution as if a legal grant had been a made to in. The right thus acquired includes, as part of it, an immunity from payment of rent which must necessarily constitute a right in limitation of the Governments right to assess in excess of the specific limit established and preserved by the Government Resolution within the meaning of S. 8 of the Bombay Act II [2] ofis, therefore, no escape from the conclusion arrived at by the High Court, with which we concur, that the words of S. 8 would apply to a case where total exemption from assessment was granted. In other words, specific limit may be nil for the purposes of S. 8 of thecontention, however, was not raised in the written statement and was not made the subject matter of any issue on which the parties went to trial and was never put forward before either of the Courts below. Indeed, in the letter of the Mayor of Bombay dated 22- 3-1939, to which reference has been made, it was clearly alleged that "the word "rent" was used in official documents with the greatest frequency with reference to, the land revenue leviable by the East India Company and later by the Government in the City of Bombay and in the Presidency " In the Governments reply dated 24-1-1940, also quoted above, this assertion was never repudiated or denied. In the premises, the appellant cannot be permitted at this stage to raise this contention founded on the supposed distinction, if any, between "rent" and "land revenue" and for the purpose of this case we must proceed on the basis that the word "rent" in the Government Resolution of 1865 was synonymous with or included "land | 1 | 3,625 | 595 | ### Instruction:
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is whether, on the facts of this case, the Respondent Corporation has succeeded in establishing in itself a right in limitation of the right of the Government to assess the land in consequence of a specific limit to assessment having been established and preserved. There is no dispute that by reason of the non-compliance with the statutory formalities the Government Resolution of 1865 is not an effectual grant passing title in the land to the respondent Corporation and is not also an enforceable contract. On the other hand, there is no doubt as to the existence of an intention on the part of the Government to make and on the part of the Corporation to take a grant of the land in terms of the Resolution of 1865 including an undertaking by the Government not to charge any rent. Both parties acted on the basis of that Resolution and the predecessor in title of the Respondent Corporation went into possession of the land in question pursuant to the Government Resolution of 1865 and, acting upon the said Resolution and the terms contained therein, the Respondent Corporation and its predecessor in title spent considerable sums of money in leveling the site and erecting and maintaining the market buildings and have been in possession of the land for over 70 years. What, in the circumstances was the legal position of the respondent Corporation and its predecessor in title in relation to the land in question? They were in possession of the land to which they had no legal title at all.13. Therefore, the position of the respondent Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the respondent Corporation took possession of the land under the invalid grant. This possession has continued openly as of right and uninterruptedly for over 70 years and the respondent Corporation has acquired the limited title it and its predecessor in title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity, free from rent but only for the purposes of a market in terms of the Government Resolution of 1865. The immunity from the liability to pay rent is just as much an integral part or an in severable incident of the title so acquired as is the obligation to hold the land for the purposes of a market and for no other purpose. There is no question of acquisition by adverse possession of the Governments prerogative right to levy assessment. What the respondent Corporation has acquired is the legal right to hold the land in perpetuity free of rent for the specific purpose of erecting and maintaining a market upon the terms of the Government Resolution as if a legal grant had been a made to in. The right thus acquired includes, as part of it, an immunity from payment of rent which must necessarily constitute a right in limitation of the Governments right to assess in excess of the specific limit established and preserved by the Government Resolution within the meaning of S. 8 of the Bombay Act II [2] of 1876.It is true, as pointed out by the Privy Council in Kamalavahoojs Maharaj v. Collector of Bombay,(39 Bom. L. R. l046) (supra.) that the words of the section would appear to apply rather to the case of a limitation on the right to assess than to the case of a complete exemption from assessment but such a construction would not protect the case of total exemption which, as conceded in that very case, did in fact exist and were recognised and protected by virtue of the words of S. 8 of the Bombay Act II [2] of 1876. It has not been suggested before us that there are no cases of total exemption or that those cases are protected by any provision of law other than that of this very section. There is, therefore, no escape from the conclusion arrived at by the High Court, with which we concur, that the words of S. 8 would apply to a case where total exemption from assessment was granted. In other words, specific limit may be nil for the purposes of S. 8 of the Act.14. It was sought to be argued that even if the Government be precluded from enhancing the "rent" in view of the terms of the Government Resolution, it cannot be held to have disentitled itself from its prerogative right to assess "land revenue. This contention is sought to be founded on a distinction between "rent" and "land revenue." This contention, however, was not raised in the written statement and was not made the subject matter of any issue on which the parties went to trial and was never put forward before either of the Courts below. Indeed, in the letter of the Mayor of Bombay dated 22- 3-1939, to which reference has been made, it was clearly alleged that "the word "rent" was used in official documents with the greatest frequency with reference to, the land revenue leviable by the East India Company and later by the Government in the City of Bombay and in the Presidency " In the Governments reply dated 24-1-1940, also quoted above, this assertion was never repudiated or denied. In the premises, the appellant cannot be permitted at this stage to raise this contention founded on the supposed distinction, if any, between "rent" and "land revenue" and for the purpose of this case we must proceed on the basis that the word "rent" in the Government Resolution of 1865 was synonymous with or included "land revenue.”15.
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Therefore, the position of the respondent Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the respondent Corporation took possession of the land under the invalid grant. This possession has continued openly as of right and uninterruptedly for over 70 years and the respondent Corporation has acquired the limited title it and its predecessor in title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity, free from rent but only for the purposes of a market in terms of the Government Resolution of 1865. The immunity from the liability to pay rent is just as much an integral part or an in severable incident of the title so acquired as is the obligation to hold the land for the purposes of a market and for no other purpose. There is no question of acquisition by adverse possession of the Governments prerogative right to levy assessment. What the respondent Corporation has acquired is the legal right to hold the land in perpetuity free of rent for the specific purpose of erecting and maintaining a market upon the terms of the Government Resolution as if a legal grant had been a made to in. The right thus acquired includes, as part of it, an immunity from payment of rent which must necessarily constitute a right in limitation of the Governments right to assess in excess of the specific limit established and preserved by the Government Resolution within the meaning of S. 8 of the Bombay Act II [2] ofis, therefore, no escape from the conclusion arrived at by the High Court, with which we concur, that the words of S. 8 would apply to a case where total exemption from assessment was granted. In other words, specific limit may be nil for the purposes of S. 8 of thecontention, however, was not raised in the written statement and was not made the subject matter of any issue on which the parties went to trial and was never put forward before either of the Courts below. Indeed, in the letter of the Mayor of Bombay dated 22- 3-1939, to which reference has been made, it was clearly alleged that "the word "rent" was used in official documents with the greatest frequency with reference to, the land revenue leviable by the East India Company and later by the Government in the City of Bombay and in the Presidency " In the Governments reply dated 24-1-1940, also quoted above, this assertion was never repudiated or denied. In the premises, the appellant cannot be permitted at this stage to raise this contention founded on the supposed distinction, if any, between "rent" and "land revenue" and for the purpose of this case we must proceed on the basis that the word "rent" in the Government Resolution of 1865 was synonymous with or included "land
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Mcx Stock Exchange Limited Vs. Securities & Exchange Board of India & Others | This ground in the impugned order is, therefore, extraneous to the MIMPS Regulations. If the requirements of the MIMPS Regulations are fulfilled, then independent of them, there would be no further norm referable to the concentration of economic interest on which the Petitioner would fail in its application.Fit and proper person:101. In holding that it would not be in the public interest and the interest of the trade to grant the application, SEBI has concluded in its impugned order that the Petitioner is not a fit and proper person. This finding is primarily based on the following premises:(i) There was a failure on the part of the Petitioner to disclose the buy back agreements. These should have been shared with SEBI in order to enable it to determine whether Regulation 8(1) has been complied with;(ii) The buy back agreements were illegal under the SCRA and the Petitioner was either instrumental to those agreements or has knowledge of them; and(iii) The Petitioner should have submitted the proposed Scheme of Reduction to SEBI and ought to have sought a confirmation of whether it fully complies with the MIMPS Regulations. The Whole Time Member has, however, concluded that he cannot go so far as to agree with what has been stated in the notice that the Petitioner has been dishonest in not giving SEBI adequate information about the Scheme itself.102. In the earlier part of this judgment, the issue of disclosure has been elaborated upon at length. The relationship of a stock exchange with SEBI must be founded on utmost good faith. Material and relevant facts which have a bearing on compliance with the Act and the Regulations which SEBI enforces must be disclosed. When SEBI, as a condition for the recognition of a stock exchange imposes a stipulation of compliance with the provisions of the MIMPS Regulations and it may be compliance of the relevant provisions as the subsequent notification imposes there has to be a genuine and honest compliance with the requirements of the Regulations. The Petitioner and its promoters may be correct in asserting that the existence of the buy back agreements does not ipso facto result in a violation of the MIMPS Regulations, in the present, once the shareholding of the promoters is brought within the permissible limit. The buy back involves an option which may or may not be exercised in the future. The promoters submit that they have several courses of action open to ensure that their shareholding does not exceed the statutory limit if the option is exercised. New capital can be infused by increasing the authorised capital; or the promoters may find an independent third party to purchase the shares on the exercise of the buy back option. But these are evidently matters which SEBI as regulator must be informed about. The buy back casts an obligation on the promissory to purchase though an option is given to the promisee to sell in future. The regulator is entitled to be in the know of full facts and the existence of a buy back agreement is a relevant fact. Even assuming that the promoters would make legitimate arrangements in future upon the exercise of the buy back option to ensure that their shareholding continues to be within the limit prescribed, SEBI would be within its statutory powers to demand assurances that those conditions would be fulfilled. We are, therefore, unable to accept the submission which was urged on behalf of the promoters that the non-disclosure of the buy back agreements is of no consequence because the buy back agreements were, according to them, a wholly irrelevant consideration. The divestment of shares held by the promoters in excess of the limit prescribed by Regulation 8 was to ensure MIMPS compliance. If as in this case, a divestment of shares was also accompanied by a buy back obligation assumed by the promoters, disclosure of the buy back is a relevant consideration. The existence of the buy back agreements is a relevant consideration in enabling SEBI to determine as to whether there was a genuine divesting of shares held by the promoters in exeess of the limit. Compliance with the provisions of the MIMPS Regulations by the promoters of the stock exchange cannot be cloaked in secrecy qua SEBI as a regulator.103. But having said this, we are of the view that it would not be justifiable in the facts of the present case to reject the application merely on that ground. From the perspective of the Whole Time Member who made the impugned order, the non-disclosure of the buy back agreements is coupled with his finding that the buy back is a forward contract and, is therefore, illegal. This aspect of the finding of the adjudicating officer has been held to be erroneous in the earlier part of the judgment. Once the buy back agreement is held not to be a forward contract, then the alleged illegality of the agreement as a ground for holding that the Petitioner is not a fit and proper person necessarily ceases to exist. Another circumstance which must be borne in mind is that during the course of the proceedings before SEBI, an undertaking has been tendered on behalf of the promoters that the statutory limit which has been prescribed under the MIMPS Regulations would not be exceeded. Moreover, during the course of the proceedings before this Court, the undertaking which has been tendered by the promoters is even more specific and stringent: that notwithstanding the exercise of the option under the buy back or the warrants, the shareholding of both the promoters together jointly or severally will not exceed five per cent. There has, hence, been a bona fide effort on the part of the Petitioner and its two promoters to ensure that they do not breach the provisions of the MIMPS Regulations by undertaking to the Court that the shareholding of the promoters together shall not exceed the limit of five per cent prescribed under the MIMPS Regulations for a resident. | 1[ds]61. The position on the record, therefore, is that as a result of the scheme of reduction which was put into place, the shareholding of the two promoters was brought down to five per cent each. Each of the two promoters was allotted warrants in lieu of the share capital which was reduced. The warrants were not to carry any voting rights. Under the warrants, the promoters were conferred with an option to obtain the allotment of equity shares after the expiry of six months. The promoters, by the resolutions passed by their Board of Directors, resolved that the exercise of the option under the warrants shall not be carried out to exceed the limit prescribed in the MIMPS Regulations. In pursuance of the statement which was made before the Division Bench of this Court that the promoters would pass Board resolutions to ensure that they would not increase their shareholding beyond the limit prescribed in the MIMPS Regulations, resolutions were, in fact, passed and intimated to SEBI. Having regard to this undisputed background, it is not possible to accept the finding of the Whole Time Member that the issuance of warrants to the two promoters is a device which would result in a restoration of their holding beyond the limit prescribed by the MIMPS Regulations. A mere possibility of what may happen is hypothetical, as the Supreme Court has held and cannot result in the invalidation of a transaction which is otherwise lawful. (Hindustan Lever Employees Union vs. Hindustan Lever Ltd. (1995) Suppl. 1 SCC 499) .A scheme under Section 391 of the Companies Act, 1956 has statutory force and binds the creditors and shareholders of the Company. SEBI is not a creditor of the Company. SEBI, as a matter of fact, was not heard in the Company Petition. There can be no dispute about the principle of law that the powers of the Company Court, when it sanctions a scheme under Sections 391 to 393 of the Companies Act, 1956, are wide. Before sanctioning a scheme, though approved by a majority of the creditors or members, the Court has to be satisfied that the Company or any other person moving the application for sanction, has disclosed all the relevant matters. The Court has to determine whether the scheme is fair, just and reasonable and is not contrary to the provisions of law or of public policy. The Court would not countenance a scheme which is unconscionable or illegal or which is otherwise unfair and unjust to the class of shareholders or creditors for whom it is meant. (Mihir H.Mafatlal vs. Mafatlal Industries Ltd. (1997) 1 SCC 579 ). Once the scheme is sanctioned, it would bind even the dissenting minority shareholders or creditors. (S.K. Gupta vs. K.P. Jain, (1979 (49) Com. Cases 342)and N.A.P. Allagiri Raja vs. N.Guruswamy (1989) 65 Com.Cases 758). Consequently, when the Company Court sanctions the scheme, the fairness of the scheme qua them has also to be borne in mind. The point, however, to note is that SEBI as a regulatory authority is entitled in law to determine as to whether the provisions of the MIMPS Regulations as a condition subject to which recognition has been granted, have been complied with. The power of SEBI to do so as an expert regulatory body acting within the domain of its own statutory functions is not abrogated by the sanction which was granted by the Company Court. The scheme ofwas also a scheme under Section 100. Such a scheme, as well, will not dilute or abrogate the statutory powers of SEBI to exact compliance with the statutory provisions, the enforcement of which SEBI can oversee.We are unable to accept the submission that a fair, candid and complete disclosure to SEBI would not require a disclosure in respect of the buy back arrangement. The object and purpose of the divestment of shares of the promoters was to ensure compliance with Regulation 8 of the MIMPS Regulations. If in the process of divestment, the promoters were under an obligation to offer to buy back the shares on the completion of a period stipulated, that is a matter which ought to have been brought to the notice of SEBI. The submission which has been urged on behalf of the promoters is that the buy back would not necessarily result in the promoters exceeding the shareholding limit of five per cent in the equity capital of the Petitioner. It was submitted that, for instance, it would be open to the promoters to ensure continued compliance with the MIMPS Regulations despite the exercise of the option under the buy back agreements by (i) increasing the equity capital; or (ii) causing the purchase of shares to be effected by an independent nominee. Hence, it was urged that the buy back agreements would not foreclose the possibility of MIMPS compliance in the future despite the exercise of the buy back option. That, in our view, did not absolve the Petitioner to make a full disclosure before SEBI that while compliance with Regulation 8 was being fulfilled by a divestment of shares, yet buy back agreements were entered into. The basic purpose underlying Regulation 8 is to ensure that no resident should own whether directly or indirectly with any other persons acting in concert, more than five per cent of the equity capital of a recognised stock exchange. Where the promoters hold more than five per cent of the equity capital, the divestment of their excess holding, so as to bring them in compliance with Regulation 8, must be genuine. The fact that the divestment of the shares held by a promoter in a stock exchange is accompanied by a buy back agreement is a material circumstance which must be disclosed to SEBI. On 21 July 2010, SEBIaddressed a letter tothe Petitioner adverting to a news article published on 19 July 2010, stating that the promoters of the Petitioner had entered into buy back agreements with the Banks who are shareholders of the Petitioner. In a reply dated 2 August 2010, the Petitioner informed SEBI that FTIL, as its promoter, had issued a letter of comfort dated 12 August 2009 to PNB without entering into a formal binding buy back agreement or shareholding agreement. It was stated that once the Scheme of Reduction was approved, the letter addressed by FTIL to PNB became infructuous and irrelevant. The Petitioner stated that it has complied with the MIMPS Regulations by virtue of the Scheme as approved and the shareholding of FTIL and MCX stood reduced to five per cent with no right to acquire even a single share in violation of limit prescribed by MIMPS Regulations. Even at that stage, there was no reference to the buy back agreement which was entered into withOn this aspect of the matter, we are unable to accept the contention of the Petitioner and of the Third and Fourth Respondents that the existence of the buy back agreements was a circumstance which was irrelevant and was not required to be disclosed tobuy back agreements furnish to PNB andan option. The option constitutes a privilege, the exercise of which depends upon their unilateral volition. In the case of PNB, the buy back agreements contemplated a buy back by FTIL after the expiry of a stipulated period. But, in the event that PNB still asserted that it would continue to hold the shares, despite the buy back offer, FTIL or its nominees would have no liability for buying back the shares in future. In the case ofn assumed an obligation to offer to purchase either through itself or its nominee the shares which were sold toafter the expiry of a stipulated period. In both cases, the option to sell rested in the unilateral decision of PNB andas the case may be.75. In a buy back agreement of the nature involved in the present case, the promissor who makes an offer to buy back shares cannot compel the exercise of the option by the promisee to sell the shares at a future point in time. If the promisee declines to exercise the option, the promissor cannot compel performance. A concluded contract for the sale and purchase of shares comes into existence only when the promisee upon whom an option is conferred, exercises the option to sell the shares. Hence, an option to purchase or repurchase is regarded as being in the nature of a privilege.In a buy back agreement of the nature involved in the present case, the promissor who makes an offer to buy back shares cannot compel the exercise of the option by the promisee to sell the shares at a future point in time. If the promisee declines to exercise the option, the promissor cannot compel performance. A concluded contract for the sale and purchase of shares comes into existence only when the promisee upon whom an option is conferred, exercises the option to sell the shares. Hence, an option to purchase or repurchase is regarded as being in the nature of athe present case, the contract for sale or purchase of the securities would fructify only upon the exercise of the option by PNB or, as the case may be,in future. If the option were not to be exercised by them, no contract for sale or purchase of securities would come into existence. Moreover, if the option were to be exercised, there is nothing to indicate that the performance of the contract would be by anything other than by a spot delivery, cash or special delivery. Where securities are dealt with by a depository, the transfer of securities by a depository from the account of a beneficial owner to another beneficial owner is within the ambit of spot delivery.In the present case, there is no contract for the sale and purchase of shares. A contract for the purchase or sale of the shares would come into being only at a future point of time in the eventuality of the party which is granted an option exercising the option in future. Once such an option is exercised, the contract would be completed only by means of spot delivery or by a mode which is considered lawful. Hence, the basis and foundation of the order which is that there was a forward contract which is unlawful at its inception is lacking infind merit in the submission urged on behalf of the Petitioner and by Counsel for the Third and Fourth Respondents that this contention which is urged on behalf of SEBI has been raised for the first time during the course of the oral arguments in Court. The contention was not a part of the notice to show cause, nor was it the basis of the order that was passed by the Whole Time Member. Moreover, on 13 September 2011, SEBI has issued a notice to show cause to the Petitioner stating that in the alternative to the findings recorded in paragraphs 66 and 67 of the order dated 23 September 2010 (those relating to the buy back agreements being forward contracts and, therefore, unlawful) and assuming that the buy back agreements are not in the nature of forward contracts, they would amount to an option in securities and, therefore, derivatives which were neither traded nor settled at any recognized stock exchange nor with the permission of SEBI. They are consequently, stated to be in breach of the provisions of Section 18A of the SCRA read with the notification dated 1 March 2000. The Petitioner has been called upon to show cause as to why its application dated 13 June 2011 for the renewal of recognition should not be rejected. Having regard to the fact that SEBI has issued a notice to show cause to the Petitioner raising the very ground which was sought to be urged in the alternative by the Learned Additional Solicitor General, we are of the view that it is manifestly inappropriate for this Court to render an adjudication on the issue at this stage. That is even more so, because a violation of the provisions of Section 18A on the basis that the buy back agreements constitute options in securities or derivatives was not a ground taken in the show cause notice which resulted in the impugned order of the Whole Time Member, nor for that matter, is it a ground in the impugned order itself.Now, it must be emphasized that Explanation (IV) to Regulation 8 provides that the expression persons acting in concert shall have the meaning derived from Regulation 2(1)(e) of the Takeover Regulations. The meaning ascribed to the expression persons acting in concert in Regulation 2(1)(e) is unless the context otherwise requires. But, Explanation IV of Regulation 8 incorporates specifically the definition from Regulation 2(1)(e) of the Takeover Regulations. In deriving the meaning of the expression persons acting in concert from the Takeover Regulations and applying it in the context of the MIMPS Regulations, it will be necessary for the Court to render the expression workable having regard to the context in which the term is used in the MIMPS Regulations. Regulation 8 of the MIMPS Regulations, as it now stands, regulates the holding of equity share capital of a recognized stock exchange. Though Regulation 8 prior to its amendment in 2008 regulated both the acquisition and holding of paid up equity capital, the reference to acquisition was deleted by the amendment. This is indicative of the fact that the common purpose of the acquisition of shares may not be relevant for the purposes of the MIMPS Regulations. Moreover, even the Takeover Regulations themselves contemplate the use of the expression persons acting in concert in connection with the holding of shares, such as in the provisions of Section 6(3). At the same time, while the definition of the expression persons acting in concert in the Takeover Regulations is to be applied in a meaningful sense for the purpose of the MIMPS Regulations, the essential ingredient of the expression is the existence of a common objective. SEBI as a delegate of Parliament, when it made the MIMPS Regulations, incorporated the definition of the expression from the Takeover Regulations. SEBI would be presumed to have known the ambit of that expression as used and interpreted in the Takeover Regulations. When the meaning of the expression persons acting in concert is derived from the Takeover Regulations, the latter constitute the source of the meaning. The essential attributes of the expression are those which are to be found in the Takeover Regulations. In extrapolating the meaning contained in the Takeover Regulations to the MIMPS Regulations, the essential features of the meaning cannot be destroyed. The process of extrapolation may legitimately involve necessary changes in points of detail. To incorporate the meaning mutatis mutandis may be permissible so as to adapt matters of detail to impart effective content to the expression when it is used in the context of the MIMPS Regulations. But that process must necessarily adopt the heart and soul of the meaning and the existence of a common object and purpose constitutes the essence of the meaning of the expression persons acting in concert. Regulation 8 is being applied to a situation where the promoters of a stock exchange held the entire equity capital before the process of divestment commenced. The mere fact that they are promoters is not sufficient to hold that they are acting in concert for the purpose of Regulation 8. If such an extreme position of interpretation were to be adopted, compliance with Regulation 8 norms would be illusory in a situation where the original position is that the entire share capital is held by promoters. Hence, the law requires something more to establish a case of persons acting in concert. The essential ingredients of the definition in Regulation 2(1)(e) must beis merit in the contention which has been urged on behalf of the Petitioner and the Third and Fourth Respondents that the impugned order proceeds to hold that Jignesh Shah is a Manager of both FTIL and MCX primarily on the basis of one letter and the undertaking contained therein. The test which has been adverted to in the judgment of the Supreme Court in Alagappa Textile (supra) has not been considered while assessing the applicability of Regulation 2(2)(e)(2). Moreover, several of the circumstances which have been adverted to during the course of the submissions by the Learned Additional Solicitor General of India do not form the basis of the impugned order. This is apart from the fact that in deciding the issue as to whether FTIL and MCX are persons acting in concert, the Whole Time Member of SEBI has not dealt with whether the principal requirement of a common objective or purpose has been fulfilled. The impugned order is, therefore, rendered vulnerable on account of its failure to apply the requisite legal standard that must determine whether the promoters were acting in concert within the meaning of Regulation 2(1)(e).The Third and Fourth Respondents have now unequivocally stated before the Court that they would undertake together not to exceed five per cent in the shareholding of the Petitioner or such limit as may be prescribed under the MIMPS Regulations from time to time. A further undertaking has been tendered that even if the option under the buy back or under the warrants are exercised, the holding of the Third and Fourth Respondents jointly or severally shall not exceed five per cent. This is an aspect which SEBI must be required to reconsider upon the final order that we propose to pass in the case.Concentration of Economic Interest:100. The finding by SEBI to the effect that there would be a concentration of economic interest has fairly not been canvassed by the Learned Additional Solicitor General during the course of the submissions. None of the Regulations contains an independent statutory norm in regard to the concentration of economic interest. This ground in the impugned order is, therefore, extraneous to the MIMPS Regulations. If the requirements of the MIMPS Regulations are fulfilled, then independent of them, there would be no further norm referable to the concentration of economic interest on which the Petitioner would fail in its application.Fit and proper person:101. In holding that it would not be in the public interest and the interest of the trade to grant the application, SEBI has concluded in its impugned order that the Petitioner is not a fit and proper person. This finding is primarily based on the following premises:(i) There was a failure on the part of the Petitioner to disclose the buy back agreements. These should have been shared with SEBI in order to enable it to determine whether Regulation 8(1) has been complied with;(ii) The buy back agreements were illegal under the SCRA and the Petitioner was either instrumental to those agreements or has knowledge of them; and(iii) The Petitioner should have submitted the proposed Scheme of Reduction to SEBI and ought to have sought a confirmation of whether it fully complies with the MIMPS Regulations. The Whole Time Member has, however, concluded that he cannot go so far as to agree with what has been stated in the notice that the Petitioner has been dishonest in not giving SEBI adequate information about the Scheme itself.102. In the earlier part of this judgment, the issue of disclosure has been elaborated upon at length. The relationship of a stock exchange with SEBI must be founded on utmost good faith. Material and relevant facts which have a bearing on compliance with the Act and the Regulations which SEBI enforces must be disclosed. When SEBI, as a condition for the recognition of a stock exchange imposes a stipulation of compliance with the provisions of the MIMPS Regulationsand it may be compliance of the relevant provisions as the subsequent notification imposesthere has to be a genuine and honest compliance with the requirements of the Regulations. The Petitioner and its promoters may be correct in asserting that the existence of the buy back agreements does not ipso facto result in a violation of the MIMPS Regulations, in the present, once the shareholding of the promoters is brought within the permissible limit. The buy back involves an option which may or may not be exercised in the future. The promoters submit that they have several courses of action open to ensure that their shareholding does not exceed the statutory limit if the option is exercised. New capital can be infused by increasing the authorised capital; or the promoters may find an independent third party to purchase the shares on the exercise of the buy back option. But these are evidently matters which SEBI as regulator must be informed about. The buy back casts an obligation on the promissory to purchase though an option is given to the promisee to sell in future. The regulator is entitled to be in the know of full facts and the existence of a buy back agreement is a relevant fact. Even assuming that the promoters would make legitimate arrangements in future upon the exercise of the buy back option to ensure that their shareholding continues to be within the limit prescribed, SEBI would be within its statutory powers to demand assurances that those conditions would be fulfilled. We are, therefore, unable to accept the submission which was urged on behalf of the promoters that theof the buy back agreements is of no consequence because the buy back agreements were, according to them, a wholly irrelevant consideration. The divestment of shares held by the promoters in excess of the limit prescribed by Regulation 8 was to ensure MIMPS compliance. If as in this case, a divestment of shares was also accompanied by a buy back obligation assumed by the promoters, disclosure of the buy back is a relevant consideration. The existence of the buy back agreements is a relevant consideration in enabling SEBI to determine as to whether there was a genuine divesting of shares held by the promoters in exeess of the limit. Compliance with the provisions of the MIMPS Regulations by the promoters of the stock exchange cannot be cloaked in secrecy qua SEBI as a regulator.103. But having said this, we are of the view that it would not be justifiable in the facts of the present case to reject the application merely on that ground. From the perspective of the Whole Time Member who made the impugned order, theof the buy back agreements is coupled with his finding that the buy back is a forward contract and, is therefore, illegal. This aspect of the finding of the adjudicating officer has been held to be erroneous in the earlier part of the judgment. Once the buy back agreement is held not to be a forward contract, then the alleged illegality of the agreement as a ground for holding that the Petitioner is not a fit and proper person necessarily ceases to exist. Another circumstance which must be borne in mind is that during the course of the proceedings before SEBI, an undertaking has been tendered on behalf of the promoters that the statutory limit which has been prescribed under the MIMPS Regulations would not be exceeded. Moreover, during the course of the proceedings before this Court, the undertaking which has been tendered by the promoters is even more specific and stringent: that notwithstanding the exercise of the option under the buy back or the warrants, the shareholding of both the promoters together jointly or severally will not exceed five per cent. There has, hence, been a bona fide effort on the part of the Petitioner and its two promoters to ensure that they do not breach the provisions of the MIMPS Regulations by undertaking to the Court that the shareholding of the promoters together shall not exceed the limit of five per cent prescribed under the MIMPS Regulations for a resident. | 1 | 30,460 | 4,338 | ### Instruction:
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This ground in the impugned order is, therefore, extraneous to the MIMPS Regulations. If the requirements of the MIMPS Regulations are fulfilled, then independent of them, there would be no further norm referable to the concentration of economic interest on which the Petitioner would fail in its application.Fit and proper person:101. In holding that it would not be in the public interest and the interest of the trade to grant the application, SEBI has concluded in its impugned order that the Petitioner is not a fit and proper person. This finding is primarily based on the following premises:(i) There was a failure on the part of the Petitioner to disclose the buy back agreements. These should have been shared with SEBI in order to enable it to determine whether Regulation 8(1) has been complied with;(ii) The buy back agreements were illegal under the SCRA and the Petitioner was either instrumental to those agreements or has knowledge of them; and(iii) The Petitioner should have submitted the proposed Scheme of Reduction to SEBI and ought to have sought a confirmation of whether it fully complies with the MIMPS Regulations. The Whole Time Member has, however, concluded that he cannot go so far as to agree with what has been stated in the notice that the Petitioner has been dishonest in not giving SEBI adequate information about the Scheme itself.102. In the earlier part of this judgment, the issue of disclosure has been elaborated upon at length. The relationship of a stock exchange with SEBI must be founded on utmost good faith. Material and relevant facts which have a bearing on compliance with the Act and the Regulations which SEBI enforces must be disclosed. When SEBI, as a condition for the recognition of a stock exchange imposes a stipulation of compliance with the provisions of the MIMPS Regulations and it may be compliance of the relevant provisions as the subsequent notification imposes there has to be a genuine and honest compliance with the requirements of the Regulations. The Petitioner and its promoters may be correct in asserting that the existence of the buy back agreements does not ipso facto result in a violation of the MIMPS Regulations, in the present, once the shareholding of the promoters is brought within the permissible limit. The buy back involves an option which may or may not be exercised in the future. The promoters submit that they have several courses of action open to ensure that their shareholding does not exceed the statutory limit if the option is exercised. New capital can be infused by increasing the authorised capital; or the promoters may find an independent third party to purchase the shares on the exercise of the buy back option. But these are evidently matters which SEBI as regulator must be informed about. The buy back casts an obligation on the promissory to purchase though an option is given to the promisee to sell in future. The regulator is entitled to be in the know of full facts and the existence of a buy back agreement is a relevant fact. Even assuming that the promoters would make legitimate arrangements in future upon the exercise of the buy back option to ensure that their shareholding continues to be within the limit prescribed, SEBI would be within its statutory powers to demand assurances that those conditions would be fulfilled. We are, therefore, unable to accept the submission which was urged on behalf of the promoters that the non-disclosure of the buy back agreements is of no consequence because the buy back agreements were, according to them, a wholly irrelevant consideration. The divestment of shares held by the promoters in excess of the limit prescribed by Regulation 8 was to ensure MIMPS compliance. If as in this case, a divestment of shares was also accompanied by a buy back obligation assumed by the promoters, disclosure of the buy back is a relevant consideration. The existence of the buy back agreements is a relevant consideration in enabling SEBI to determine as to whether there was a genuine divesting of shares held by the promoters in exeess of the limit. Compliance with the provisions of the MIMPS Regulations by the promoters of the stock exchange cannot be cloaked in secrecy qua SEBI as a regulator.103. But having said this, we are of the view that it would not be justifiable in the facts of the present case to reject the application merely on that ground. From the perspective of the Whole Time Member who made the impugned order, the non-disclosure of the buy back agreements is coupled with his finding that the buy back is a forward contract and, is therefore, illegal. This aspect of the finding of the adjudicating officer has been held to be erroneous in the earlier part of the judgment. Once the buy back agreement is held not to be a forward contract, then the alleged illegality of the agreement as a ground for holding that the Petitioner is not a fit and proper person necessarily ceases to exist. Another circumstance which must be borne in mind is that during the course of the proceedings before SEBI, an undertaking has been tendered on behalf of the promoters that the statutory limit which has been prescribed under the MIMPS Regulations would not be exceeded. Moreover, during the course of the proceedings before this Court, the undertaking which has been tendered by the promoters is even more specific and stringent: that notwithstanding the exercise of the option under the buy back or the warrants, the shareholding of both the promoters together jointly or severally will not exceed five per cent. There has, hence, been a bona fide effort on the part of the Petitioner and its two promoters to ensure that they do not breach the provisions of the MIMPS Regulations by undertaking to the Court that the shareholding of the promoters together shall not exceed the limit of five per cent prescribed under the MIMPS Regulations for a resident.
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to the concentration of economic interest. This ground in the impugned order is, therefore, extraneous to the MIMPS Regulations. If the requirements of the MIMPS Regulations are fulfilled, then independent of them, there would be no further norm referable to the concentration of economic interest on which the Petitioner would fail in its application.Fit and proper person:101. In holding that it would not be in the public interest and the interest of the trade to grant the application, SEBI has concluded in its impugned order that the Petitioner is not a fit and proper person. This finding is primarily based on the following premises:(i) There was a failure on the part of the Petitioner to disclose the buy back agreements. These should have been shared with SEBI in order to enable it to determine whether Regulation 8(1) has been complied with;(ii) The buy back agreements were illegal under the SCRA and the Petitioner was either instrumental to those agreements or has knowledge of them; and(iii) The Petitioner should have submitted the proposed Scheme of Reduction to SEBI and ought to have sought a confirmation of whether it fully complies with the MIMPS Regulations. The Whole Time Member has, however, concluded that he cannot go so far as to agree with what has been stated in the notice that the Petitioner has been dishonest in not giving SEBI adequate information about the Scheme itself.102. In the earlier part of this judgment, the issue of disclosure has been elaborated upon at length. The relationship of a stock exchange with SEBI must be founded on utmost good faith. Material and relevant facts which have a bearing on compliance with the Act and the Regulations which SEBI enforces must be disclosed. When SEBI, as a condition for the recognition of a stock exchange imposes a stipulation of compliance with the provisions of the MIMPS Regulationsand it may be compliance of the relevant provisions as the subsequent notification imposesthere has to be a genuine and honest compliance with the requirements of the Regulations. The Petitioner and its promoters may be correct in asserting that the existence of the buy back agreements does not ipso facto result in a violation of the MIMPS Regulations, in the present, once the shareholding of the promoters is brought within the permissible limit. The buy back involves an option which may or may not be exercised in the future. The promoters submit that they have several courses of action open to ensure that their shareholding does not exceed the statutory limit if the option is exercised. New capital can be infused by increasing the authorised capital; or the promoters may find an independent third party to purchase the shares on the exercise of the buy back option. But these are evidently matters which SEBI as regulator must be informed about. The buy back casts an obligation on the promissory to purchase though an option is given to the promisee to sell in future. The regulator is entitled to be in the know of full facts and the existence of a buy back agreement is a relevant fact. Even assuming that the promoters would make legitimate arrangements in future upon the exercise of the buy back option to ensure that their shareholding continues to be within the limit prescribed, SEBI would be within its statutory powers to demand assurances that those conditions would be fulfilled. We are, therefore, unable to accept the submission which was urged on behalf of the promoters that theof the buy back agreements is of no consequence because the buy back agreements were, according to them, a wholly irrelevant consideration. The divestment of shares held by the promoters in excess of the limit prescribed by Regulation 8 was to ensure MIMPS compliance. If as in this case, a divestment of shares was also accompanied by a buy back obligation assumed by the promoters, disclosure of the buy back is a relevant consideration. The existence of the buy back agreements is a relevant consideration in enabling SEBI to determine as to whether there was a genuine divesting of shares held by the promoters in exeess of the limit. Compliance with the provisions of the MIMPS Regulations by the promoters of the stock exchange cannot be cloaked in secrecy qua SEBI as a regulator.103. But having said this, we are of the view that it would not be justifiable in the facts of the present case to reject the application merely on that ground. From the perspective of the Whole Time Member who made the impugned order, theof the buy back agreements is coupled with his finding that the buy back is a forward contract and, is therefore, illegal. This aspect of the finding of the adjudicating officer has been held to be erroneous in the earlier part of the judgment. Once the buy back agreement is held not to be a forward contract, then the alleged illegality of the agreement as a ground for holding that the Petitioner is not a fit and proper person necessarily ceases to exist. Another circumstance which must be borne in mind is that during the course of the proceedings before SEBI, an undertaking has been tendered on behalf of the promoters that the statutory limit which has been prescribed under the MIMPS Regulations would not be exceeded. Moreover, during the course of the proceedings before this Court, the undertaking which has been tendered by the promoters is even more specific and stringent: that notwithstanding the exercise of the option under the buy back or the warrants, the shareholding of both the promoters together jointly or severally will not exceed five per cent. There has, hence, been a bona fide effort on the part of the Petitioner and its two promoters to ensure that they do not breach the provisions of the MIMPS Regulations by undertaking to the Court that the shareholding of the promoters together shall not exceed the limit of five per cent prescribed under the MIMPS Regulations for a resident.
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Ahmedabad Manufacturing and Calico Printing Company Limited and Another Vs. A. V. Joshi | year 1978-79 was nil and there were carried forward losses, depreciation, etc., in respect of the preceding years. It also stated that the profits of the polyester fibre plant for the assessment year 1978-79 were Rs. 4, 66, 73, 159. In respect of the Sulzer plant, it was pointed out that there was no profit The respondent worked out the relief allowable to the appellant in respect of the said plants at six per cent. of the capital employed at Rs. 77, 42, 921 in respect of the polyester fibre plant and Rs. 18, 07, 968 in respect of the Sulzer plant. On that basis, the exempted percentage of the dividend, according to the respondent, worked out at 85.38 as against 100 per cent. which had been indicated by the appellant. The respondent further held that the appellant was not entitled to have the certificate on that footing of 85.38 per cent. because the working of the Sulzer plant shows a business loss of Rs. 7, 20, 260 as computed under the Act and, therefore, there could not be any claim for exemption under section 80K in respect of the said plant. It further observed that only Rs. 77, 42, 921 referable to six per cent. of the capital employed in the polyester fibre plant, as computed by the respondent, was entitled to exemption under section 80K out of the total dividends of Rs. 1, 11, 86, 231. On that basis, the respondent issued a certificate under section 80K dated August 24, 1978, which was designated as a provisional certificate. On the appellants company request for reconsideration being turned down, a writ petition was filed in the High Court of Gujarat, contending that the respondent should be directed to issue a certificate for Rs. 95, 50, 889 in respect of the polyester fibre plant and the Sulzer plantThe High Court of Gujarat, by the impugned judgment dated January 29, 1979, came to the conclusion that in respect of the previous year relevant to the assessment year 1978-79, the Sulzer plant, which was a new undertaking, had no assessable profits and gains and, therefore, the benefit under section 80K could not be granted in respect of the relevant amount of capital employed in that plant during that particular previous year. In arriving at the aforesaid conclusion, the High Court observed that the decision of this court in the case of Union of India v. Coromandel Fertilizers Ltd. did support the contention of the appellant to the effect that the benefit under section 80K would be available but the High Court doubted the correctness of this judgment in view of the decisions of this court in the cases of Rajapalayam Mills Ltd. v. CIT and CIT v. Patiala Flour Mills Co. P. Ltd. The decision of this court in Coromandel Fertilizers case related to the interpretation of section 80K of the Act. The material portion of the section was there shall be allowed in computing his total income a deduction from such income by way of dividends an amount equal to such part thereof as is attributable to profits and gains derived by the company from an industrial undertaking or ship or the business of a hotel in respect of which the company is entitled to deduction under section 80J. It was held that even if the new industrial undertaking had no profits or gains assessable to the income-tax during the assessment years in question the assessee was entitled to the relief under section 80K. Emphasis was laid on the words "as is attributable to profits and gains derived by the company ......" in respect of which the company is entitled to a deduction under section 80J and it was held that even if deduction under section 80J was not actually allowed but the entitlement was there, then the provision of section 80K would be attractedThe High Court, by an involved reasoning, came to the conclusion that in the light of the interpretation placed on the scheme of section 80J by the three-judge Bench in Patiala Flour Mills Co.s case (SC) and Rajapalayam Mills case (SC) which interpretation was not present when this court decided Coromandel Fertilizers case, the provisions of section 80K were not applicable when the profits and gains derived by the company from a new industrial undertaking when computed under the provisions of the Income-tax Act are nil or show a loss In our opinion, there is no justification for the High Court not to have followed the decision of this court in Coromandel Fertilizers case. It is not in dispute that there was an entitlement to the appellant in the present case under section 80J and this being so the decision in Coromandel Fertilizers case (SC) was clearly applicable. Patiala Flour Mills case 1970 (115) ITR 640 (SC) was concerned with section 80J of the Act and Rajapalayam Mills case (SC) was essentially concerned with section 15C of the Act of 1922, and section 84 of the Act of 1961. In neither of these two cases was any reference made to Coromandel Fertilizers case (SC) for the simple reason that it was not necessary. When the assessee is entitled to the benefit under section 80K on the plain reading of the said section as interpreted by this court, there should have been no occasion for the High Court to have referred to or applied the ratio of the decisions of Patiala Flour Mills case (SC) and Rajapalayam Mills case (SC) which related to the interpretation of different sections of the Act. The latter decisions are essential only for determining whether the company was entitled to the benefit under section 80J or not. On this aspect, there is no dispute in the present case. The entitlement was there. Once this is not disputed, then automatically as per the decision in Coromandel Fertilizers case (SC), the appellant would be entitled to the benefit of section 80K and, therefore, the High Court was clearly in error in dismissing the writ petition | 1[ds]In our opinion, there is no justification for the High Court not to have followed the decision of this court in Coromandel Fertilizers case. It is not in dispute that there was an entitlement to the appellant in the present case under section 80J and this being so the decision in Coromandel Fertilizers case (SC) was clearly applicable. Patiala Flour Mills case 1970 (115) ITR 640 (SC) was concerned with section 80J of the Act and Rajapalayam Mills case (SC) was essentially concerned with section 15C of the Act of 1922, and section 84 of the Act of 1961. In neither of these two cases was any reference made to Coromandel Fertilizers case (SC) for the simple reason that it was not necessary. When the assessee is entitled to the benefit under section 80K on the plain reading of the said section as interpreted by this court, there should have been no occasion for the High Court to have referred to or applied the ratio of the decisions of Patiala Flour Mills case (SC) and Rajapalayam Mills case (SC) which related to the interpretation of different sections of the Act. The latter decisions are essential only for determining whether the company was entitled to the benefit under section 80J or not. On this aspect, there is no dispute in the present case. The entitlement was there. Once this is not disputed, then automatically as per the decision in Coromandel Fertilizers case (SC), the appellant would be entitled to the benefit of section 80K and, therefore, the High Court was clearly in error in dismissing the writ petition | 1 | 1,634 | 303 | ### Instruction:
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year 1978-79 was nil and there were carried forward losses, depreciation, etc., in respect of the preceding years. It also stated that the profits of the polyester fibre plant for the assessment year 1978-79 were Rs. 4, 66, 73, 159. In respect of the Sulzer plant, it was pointed out that there was no profit The respondent worked out the relief allowable to the appellant in respect of the said plants at six per cent. of the capital employed at Rs. 77, 42, 921 in respect of the polyester fibre plant and Rs. 18, 07, 968 in respect of the Sulzer plant. On that basis, the exempted percentage of the dividend, according to the respondent, worked out at 85.38 as against 100 per cent. which had been indicated by the appellant. The respondent further held that the appellant was not entitled to have the certificate on that footing of 85.38 per cent. because the working of the Sulzer plant shows a business loss of Rs. 7, 20, 260 as computed under the Act and, therefore, there could not be any claim for exemption under section 80K in respect of the said plant. It further observed that only Rs. 77, 42, 921 referable to six per cent. of the capital employed in the polyester fibre plant, as computed by the respondent, was entitled to exemption under section 80K out of the total dividends of Rs. 1, 11, 86, 231. On that basis, the respondent issued a certificate under section 80K dated August 24, 1978, which was designated as a provisional certificate. On the appellants company request for reconsideration being turned down, a writ petition was filed in the High Court of Gujarat, contending that the respondent should be directed to issue a certificate for Rs. 95, 50, 889 in respect of the polyester fibre plant and the Sulzer plantThe High Court of Gujarat, by the impugned judgment dated January 29, 1979, came to the conclusion that in respect of the previous year relevant to the assessment year 1978-79, the Sulzer plant, which was a new undertaking, had no assessable profits and gains and, therefore, the benefit under section 80K could not be granted in respect of the relevant amount of capital employed in that plant during that particular previous year. In arriving at the aforesaid conclusion, the High Court observed that the decision of this court in the case of Union of India v. Coromandel Fertilizers Ltd. did support the contention of the appellant to the effect that the benefit under section 80K would be available but the High Court doubted the correctness of this judgment in view of the decisions of this court in the cases of Rajapalayam Mills Ltd. v. CIT and CIT v. Patiala Flour Mills Co. P. Ltd. The decision of this court in Coromandel Fertilizers case related to the interpretation of section 80K of the Act. The material portion of the section was there shall be allowed in computing his total income a deduction from such income by way of dividends an amount equal to such part thereof as is attributable to profits and gains derived by the company from an industrial undertaking or ship or the business of a hotel in respect of which the company is entitled to deduction under section 80J. It was held that even if the new industrial undertaking had no profits or gains assessable to the income-tax during the assessment years in question the assessee was entitled to the relief under section 80K. Emphasis was laid on the words "as is attributable to profits and gains derived by the company ......" in respect of which the company is entitled to a deduction under section 80J and it was held that even if deduction under section 80J was not actually allowed but the entitlement was there, then the provision of section 80K would be attractedThe High Court, by an involved reasoning, came to the conclusion that in the light of the interpretation placed on the scheme of section 80J by the three-judge Bench in Patiala Flour Mills Co.s case (SC) and Rajapalayam Mills case (SC) which interpretation was not present when this court decided Coromandel Fertilizers case, the provisions of section 80K were not applicable when the profits and gains derived by the company from a new industrial undertaking when computed under the provisions of the Income-tax Act are nil or show a loss In our opinion, there is no justification for the High Court not to have followed the decision of this court in Coromandel Fertilizers case. It is not in dispute that there was an entitlement to the appellant in the present case under section 80J and this being so the decision in Coromandel Fertilizers case (SC) was clearly applicable. Patiala Flour Mills case 1970 (115) ITR 640 (SC) was concerned with section 80J of the Act and Rajapalayam Mills case (SC) was essentially concerned with section 15C of the Act of 1922, and section 84 of the Act of 1961. In neither of these two cases was any reference made to Coromandel Fertilizers case (SC) for the simple reason that it was not necessary. When the assessee is entitled to the benefit under section 80K on the plain reading of the said section as interpreted by this court, there should have been no occasion for the High Court to have referred to or applied the ratio of the decisions of Patiala Flour Mills case (SC) and Rajapalayam Mills case (SC) which related to the interpretation of different sections of the Act. The latter decisions are essential only for determining whether the company was entitled to the benefit under section 80J or not. On this aspect, there is no dispute in the present case. The entitlement was there. Once this is not disputed, then automatically as per the decision in Coromandel Fertilizers case (SC), the appellant would be entitled to the benefit of section 80K and, therefore, the High Court was clearly in error in dismissing the writ petition
### Response:
1
### Explanation:
In our opinion, there is no justification for the High Court not to have followed the decision of this court in Coromandel Fertilizers case. It is not in dispute that there was an entitlement to the appellant in the present case under section 80J and this being so the decision in Coromandel Fertilizers case (SC) was clearly applicable. Patiala Flour Mills case 1970 (115) ITR 640 (SC) was concerned with section 80J of the Act and Rajapalayam Mills case (SC) was essentially concerned with section 15C of the Act of 1922, and section 84 of the Act of 1961. In neither of these two cases was any reference made to Coromandel Fertilizers case (SC) for the simple reason that it was not necessary. When the assessee is entitled to the benefit under section 80K on the plain reading of the said section as interpreted by this court, there should have been no occasion for the High Court to have referred to or applied the ratio of the decisions of Patiala Flour Mills case (SC) and Rajapalayam Mills case (SC) which related to the interpretation of different sections of the Act. The latter decisions are essential only for determining whether the company was entitled to the benefit under section 80J or not. On this aspect, there is no dispute in the present case. The entitlement was there. Once this is not disputed, then automatically as per the decision in Coromandel Fertilizers case (SC), the appellant would be entitled to the benefit of section 80K and, therefore, the High Court was clearly in error in dismissing the writ petition
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MISS XYZ Vs. THE STATE OF GUJARAT | Inspector, and on relying on such statement, for quashing the FIR. It is stated that the alleged settlement was under the guise of threat and coercion by the 2nd respondent, and it is not entered into by the appellant with her free will and consent. It is stated that the 2nd respondent misused the photographs taken by him, and repeatedly used the same to blackmail her, to secure sexual favours from the appellant. It is contended that the 2nd respondent taking advantage of his position as a Managing Director of the Company, has exploited the appellant and committed rape on her at her residence and in the apartment secured by the 2nd respondent and also during her tours to Baroda. It is submitted that it is not open for the High Court to make a roving inquiry, while considering the application filed under Section 482 CrPC. 11. Learned counsel for the first respondent-State has submitted that the Investigating Officer made an attempt to secure data from the service providers of the mobile phones, but the same was not provided. In the meantime, in view of interim orders passed by the High Court, further investigation was not made. 12. Sri Mukul Rohatgi learned senior counsel appearing for the 2nd respondent, by taking us through the settlement documents arrived, between the parties, and other material placed on record, has submitted that there is absolutely no basis for the allegation of rape by the 2nd respondent, and it was only consensual sex between the parties. It is submitted that having regard to the allegations made, parties arrived at a settlement and entered into a written agreement in the month of July, 2016. As the appellant is not disputing the said documents, the allegation of rape is false. It is submitted that parties were in consensual sex for several years and in absence of any allegation against the 2nd respondent of committing rape subsequent to the agreement, there is no basis for such allegations. It is also submitted that there is no truth in the allegation made by the 2nd respondent about his telephone talk with Shoukin Malik, to defame the appellant. It is contended that having received huge money from the 2nd respondent pursuant to the settlement arrived at, false complaint is filed by the appellant to harass the 2nd respondent. Learned senior counsel also relied on the recent judgment of this Court dated 21 st August, 2019 passed in Criminal Appeal No.1165 of 2019 wherein in similar circumstances FIR was quashed by this Court. 13. Having heard learned counsel for the parties and after perusing the impugned order and other material placed on record, we are of the view that the High Court exceeded the scope of its jurisdiction conferred under Section 482 CrPC, and quashed the proceedings. Even before the investigation is completed by the investigating agency, the High Court entertained the Writ Petition, and by virtue of interim order granted by the High Court, further investigation was stalled. Having regard to the allegations made by the appellant/informant, whether the 2nd respondent by clicking inappropriate pictures of the appellant has blackmailed her or not, and further the 2 nd respondent has continued to interfere by calling Shoukin Malik or not are the matters for investigation. In view of the serious allegations made in the complaint, we are of the view that the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC. Though the learned counsels have made elaborate submissions on various contentious issues, as we are of the view that any observation or findings by this Court, will affect the investigation and trial, we refrain from recording any findings on such issues. From a perusal of the order of the High Court, it is evident that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the 2nd respondent was consensual. When it is the allegation of the appellant, that such document itself is obtained under threat and coercion,it is a matter to be investigated. Further, the complaint of the appellant about interference by the 2nd respondent by calling Shoukin Malik and further interference is also a matter for investigation. By looking at the contents of the complaint and the serious allegations made against the 2nd respondent, we are of the view that the High Court has committed error in quashing the proceedings. During the course of hearing, learned counsel for the appellant, brought to our notice provision/Section 114-A of the Indian Evidence Act, 1872. Section 114-A of the Indian Evidence Act, 1872 deals with the presumption as to absence of consent in certain prosecution for rape. A reading of the aforesaid Section makes it clear that, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent. 14. Though Learned senior counsel Sri Mukul Rohatgi relied on the judgment of this Court dated 21 st August,2019 in Criminal Appeal No.1165 of 2019, but we are of the view that the said judgment would not render any assistance to support his case. Whether in a given case power under Section 482 is to be exercised or not, depends on the contents of the complaint, and the material placed on record. In that view of the matter, we are of the view that it is a fit case to set aside the order passed by the High Court and allow the investigating agency to proceed with the further investigation in accordance with law. It is made clear that we have not expressed any opinion on the merits of the complaint, and it is open to the investigating agency and competent court, to proceed in accordance with law. | 1[ds]13. Having heard learned counsel for the parties and after perusing the impugned order and other material placed on record, we are of the view that the High Court exceeded the scope of its jurisdiction conferred under Section 482 CrPC, and quashed the proceedings. Even before the investigation is completed by the investigating agency, the High Court entertained the Writ Petition, and by virtue of interim order granted by the High Court, further investigation was stalled. Having regard to the allegations made by the appellant/informant, whether the 2nd respondent by clicking inappropriate pictures of the appellant has blackmailed her or not, and further the 2 nd respondent has continued to interfere by calling Shoukin Malik or not are the matters for investigation. In view of the serious allegations made in the complaint, we are of the view that the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC. Though the learned counsels have made elaborate submissions on various contentious issues, as we are of the view that any observation or findings by this Court, will affect the investigation and trial, we refrain from recording any findings on such issues. From a perusal of the order of the High Court, it is evident that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the 2nd respondent was consensual. When it is the allegation of the appellant, that such document itself is obtained under threat and coercion,it is a matter to be investigated. Further, the complaint of the appellant about interference by the 2nd respondent by calling Shoukin Malik and further interference is also a matter for investigation. By looking at the contents of the complaint and the serious allegations made against the 2nd respondent, we are of the view that the High Court has committed error in quashing the proceedings. During the course of hearing, learned counsel for the appellant, brought to our notice provision/Section 114-A of the Indian Evidence Act, 1872. Section 114-A of the Indian Evidence Act, 1872 deals with the presumption as to absence of consent in certain prosecution for rape. A reading of the aforesaid Section makes it clear that, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent.Though Learned senior counsel Sri Mukul Rohatgi relied on the judgment of this Court dated 21 st August,2019 in Criminal Appeal No.1165 of 2019, but we are of the view that the said judgment would not render any assistance to support his case. Whether in a given case power under Section 482 is to be exercised or not, depends on the contents of the complaint, and the material placed on record. In that view of the matter, we are of the view that it is a fit case to set aside the order passed by the High Court and allow the investigating agency to proceed with the further investigation in accordance with law. It is made clear that we have not expressed any opinion on the merits of the complaint, and it is open to the investigating agency and competent court, to proceed in accordance with law. | 1 | 2,173 | 628 | ### 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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Inspector, and on relying on such statement, for quashing the FIR. It is stated that the alleged settlement was under the guise of threat and coercion by the 2nd respondent, and it is not entered into by the appellant with her free will and consent. It is stated that the 2nd respondent misused the photographs taken by him, and repeatedly used the same to blackmail her, to secure sexual favours from the appellant. It is contended that the 2nd respondent taking advantage of his position as a Managing Director of the Company, has exploited the appellant and committed rape on her at her residence and in the apartment secured by the 2nd respondent and also during her tours to Baroda. It is submitted that it is not open for the High Court to make a roving inquiry, while considering the application filed under Section 482 CrPC. 11. Learned counsel for the first respondent-State has submitted that the Investigating Officer made an attempt to secure data from the service providers of the mobile phones, but the same was not provided. In the meantime, in view of interim orders passed by the High Court, further investigation was not made. 12. Sri Mukul Rohatgi learned senior counsel appearing for the 2nd respondent, by taking us through the settlement documents arrived, between the parties, and other material placed on record, has submitted that there is absolutely no basis for the allegation of rape by the 2nd respondent, and it was only consensual sex between the parties. It is submitted that having regard to the allegations made, parties arrived at a settlement and entered into a written agreement in the month of July, 2016. As the appellant is not disputing the said documents, the allegation of rape is false. It is submitted that parties were in consensual sex for several years and in absence of any allegation against the 2nd respondent of committing rape subsequent to the agreement, there is no basis for such allegations. It is also submitted that there is no truth in the allegation made by the 2nd respondent about his telephone talk with Shoukin Malik, to defame the appellant. It is contended that having received huge money from the 2nd respondent pursuant to the settlement arrived at, false complaint is filed by the appellant to harass the 2nd respondent. Learned senior counsel also relied on the recent judgment of this Court dated 21 st August, 2019 passed in Criminal Appeal No.1165 of 2019 wherein in similar circumstances FIR was quashed by this Court. 13. Having heard learned counsel for the parties and after perusing the impugned order and other material placed on record, we are of the view that the High Court exceeded the scope of its jurisdiction conferred under Section 482 CrPC, and quashed the proceedings. Even before the investigation is completed by the investigating agency, the High Court entertained the Writ Petition, and by virtue of interim order granted by the High Court, further investigation was stalled. Having regard to the allegations made by the appellant/informant, whether the 2nd respondent by clicking inappropriate pictures of the appellant has blackmailed her or not, and further the 2 nd respondent has continued to interfere by calling Shoukin Malik or not are the matters for investigation. In view of the serious allegations made in the complaint, we are of the view that the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC. Though the learned counsels have made elaborate submissions on various contentious issues, as we are of the view that any observation or findings by this Court, will affect the investigation and trial, we refrain from recording any findings on such issues. From a perusal of the order of the High Court, it is evident that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the 2nd respondent was consensual. When it is the allegation of the appellant, that such document itself is obtained under threat and coercion,it is a matter to be investigated. Further, the complaint of the appellant about interference by the 2nd respondent by calling Shoukin Malik and further interference is also a matter for investigation. By looking at the contents of the complaint and the serious allegations made against the 2nd respondent, we are of the view that the High Court has committed error in quashing the proceedings. During the course of hearing, learned counsel for the appellant, brought to our notice provision/Section 114-A of the Indian Evidence Act, 1872. Section 114-A of the Indian Evidence Act, 1872 deals with the presumption as to absence of consent in certain prosecution for rape. A reading of the aforesaid Section makes it clear that, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent. 14. Though Learned senior counsel Sri Mukul Rohatgi relied on the judgment of this Court dated 21 st August,2019 in Criminal Appeal No.1165 of 2019, but we are of the view that the said judgment would not render any assistance to support his case. Whether in a given case power under Section 482 is to be exercised or not, depends on the contents of the complaint, and the material placed on record. In that view of the matter, we are of the view that it is a fit case to set aside the order passed by the High Court and allow the investigating agency to proceed with the further investigation in accordance with law. It is made clear that we have not expressed any opinion on the merits of the complaint, and it is open to the investigating agency and competent court, to proceed in accordance with law.
### Response:
1
### Explanation:
13. Having heard learned counsel for the parties and after perusing the impugned order and other material placed on record, we are of the view that the High Court exceeded the scope of its jurisdiction conferred under Section 482 CrPC, and quashed the proceedings. Even before the investigation is completed by the investigating agency, the High Court entertained the Writ Petition, and by virtue of interim order granted by the High Court, further investigation was stalled. Having regard to the allegations made by the appellant/informant, whether the 2nd respondent by clicking inappropriate pictures of the appellant has blackmailed her or not, and further the 2 nd respondent has continued to interfere by calling Shoukin Malik or not are the matters for investigation. In view of the serious allegations made in the complaint, we are of the view that the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC. Though the learned counsels have made elaborate submissions on various contentious issues, as we are of the view that any observation or findings by this Court, will affect the investigation and trial, we refrain from recording any findings on such issues. From a perusal of the order of the High Court, it is evident that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the 2nd respondent was consensual. When it is the allegation of the appellant, that such document itself is obtained under threat and coercion,it is a matter to be investigated. Further, the complaint of the appellant about interference by the 2nd respondent by calling Shoukin Malik and further interference is also a matter for investigation. By looking at the contents of the complaint and the serious allegations made against the 2nd respondent, we are of the view that the High Court has committed error in quashing the proceedings. During the course of hearing, learned counsel for the appellant, brought to our notice provision/Section 114-A of the Indian Evidence Act, 1872. Section 114-A of the Indian Evidence Act, 1872 deals with the presumption as to absence of consent in certain prosecution for rape. A reading of the aforesaid Section makes it clear that, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent.Though Learned senior counsel Sri Mukul Rohatgi relied on the judgment of this Court dated 21 st August,2019 in Criminal Appeal No.1165 of 2019, but we are of the view that the said judgment would not render any assistance to support his case. Whether in a given case power under Section 482 is to be exercised or not, depends on the contents of the complaint, and the material placed on record. In that view of the matter, we are of the view that it is a fit case to set aside the order passed by the High Court and allow the investigating agency to proceed with the further investigation in accordance with law. It is made clear that we have not expressed any opinion on the merits of the complaint, and it is open to the investigating agency and competent court, to proceed in accordance with law.
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Sri Bhavanarayanaswamivari Temple Vs. Vadapalli Venkata Bhavanarayanacharyulu | the committee, the trustee and all persons having interest."5. It is not disputed that the decision of the Board holding that the properties in question were Archakatwam service Inam lands was not challenged by means of a suit under Section 57 (3). Therefore the said decision has become final. We have now to see what is the effect of the finality in question. According to the appellant as the title to the suit properties was not directly and substantially in issue in the proceeding before the Board and the decision thereon being only incidental, the same cannot operate as res judicata.6. In support of the contention that the decision rendered by the Board was only an incidental one, it was urged that the essential purpose of framing of a scheme for the management of temple is to see that the temples administration is carried on properly; and in such a proceeding it is not necessary to determine what all properties the temple owns. We are unable to accede to this contention. A scheme framed for the better management of a temple must necessarily show therein the properties of the temple. Before deciding of frame a scheme the authority framing the scheme must know the nature and extent of the trust funds. There can be no scheme of management of a temple in vacuum. As observed by the Judicial Committee in Chotalal Lakhmiram and Others v. Manohar Ganesh Tambekar and Others (ILR XXIV Bom 50) :"Until the trust funds are ascertained, it seems impossible that any scheme can be settled."Varadachariar, J., in (Sri Mahant) Sitaram Dass Bavaji v. Madras Religious Endowment Board, Madras and Others (AIR 1937 Mad 106 ); observed that the power given by Section 63 to the Board for framing a scheme for the management of a Mutt, a power similar to that conferred on the Board under Section 57 for framing scheme for the management of a temple carries with it the power to settle what the properties of the institution are. A scheme for proper administration of a temple must necessarily provide for the proper administration of its assets. The persons empowered to manage must know what properties are to be governed by the scheme and what the resources of the temple are.7. It is not correct to say that the power conferred on the Board under Section 57 is a summary power as urged by the learned for the appellant. A decision rendered by the Board under that section is final subject to the result of the suit contemplated in the said section. Section 57 provides for an exhaustive enquiry in the matter of framing scheme, firstly by the Board and then by the Court. The trial before the Court has to be held in the same manner as any other suit that may be instituted under the provisions of the Civil Procedure Code. In Arikapudi Balakotayya v. Yadlapalli Nagayya ((AIR) (33) 1946 Mad 509); a Division Bench of the Madras High Court held that the order made by the District Court under Section 84 (2) of the Act operates as res judicata in a subsequent proceeding. Under Section 84 (1) the Board is given power to decide if any dispute arises as to : (a) whether an institution is a Math or temple as defined to the Act; (b) whether the trustee is a hereditary trustee as defined in the Act or not, and (c) whether any property or money endowed is a specific endowment as defined in the Act or not. Sub-section (2) of that section provides that any person affected by a decision under sub-section (1) may, within six months apply to the Court to modify or set aside that decision. Sub-section (3) thereof provides for an appeal to the High Court against the order of the District Judge. Sub-section (4) of that section provides that subject to the result of an application under sub-section (2) or an appeal under sub-section (3), the decision of the Board shall be final.8. In Balakotayyas case (supra) while examining the effect of a decision under Section 84 (2), it was observed that the doctrine of res judicata is not confined to a decision in a suit but it applies to decisions in other proceedings as well. But how far a decision which is rendered in other proceedings will bind the parties depends upon other considerations one of which is whether that decision determines substantial rights of parties and the other is whether the parties are given adequate opportunities to establish the rights pleaded by them. The doctrine of res judicata is not confined to the limits prescribed in Section 11, Civil Procedure Code. The underlying principle of that doctrine is that there should be finality in litigation and that a person should not be vexed twice over in respect of the same matter.9. In the proceedings with which we are concerned in this appeal one of the important question the Board had to decide was whether the properties in dispute are Archakatwam service Inam properties. The Boards decision which was adverse to the temple, affected the rights of the temple in a substantial manner. It was open to the temple to get its right established by means of a suit under Section 57 (3). It failed to take that step. Therefore the decision of the Board has become final and binding on the temple. In State of Madras v. Kunnakudi Melamatam alias Annathana Matam ((1962) 2 MLJ 13 ) this Court held that a decision of the Board under Section 84 (1) which had become final in the absence of any application to the Court to set aside that decision under Section 84 (2), holding that the institution was outside the purview of the Act, bars the Board from levying any contribution on the institution under the Act subsequently.10. In our judgment the decision of the Board in 1931 that the suit properties are not temple properties operates as res judicata in the present proceeding. | 0[ds]9. In the proceedings with which we are concerned in this appeal one of the important question the Board had to decide was whether the properties in dispute are Archakatwam service Inam properties. The Boards decision which was adverse to the temple, affected the rights of the temple in a substantial manner. It was open to the temple to get its right established by means of a suit under Section 57 (3). It failed to take that step. Therefore the decision of the Board has become final and binding on the temple. In State of Madras v. Kunnakudi Melamatam alias Annathana Matam ((1962) 2 MLJ 13 ) this Court held that a decision of the Board under Section 84 (1) which had become final in the absence of any application to the Court to set aside that decision under Section 84 (2), holding that the institution was outside the purview of the Act, bars the Board from levying any contribution on the institution under the Act subsequently.10. In our judgment the decision of the Board in 1931 that the suit properties are not temple properties operates as res judicata in the present proceeding. | 0 | 1,611 | 217 | ### Instruction:
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the committee, the trustee and all persons having interest."5. It is not disputed that the decision of the Board holding that the properties in question were Archakatwam service Inam lands was not challenged by means of a suit under Section 57 (3). Therefore the said decision has become final. We have now to see what is the effect of the finality in question. According to the appellant as the title to the suit properties was not directly and substantially in issue in the proceeding before the Board and the decision thereon being only incidental, the same cannot operate as res judicata.6. In support of the contention that the decision rendered by the Board was only an incidental one, it was urged that the essential purpose of framing of a scheme for the management of temple is to see that the temples administration is carried on properly; and in such a proceeding it is not necessary to determine what all properties the temple owns. We are unable to accede to this contention. A scheme framed for the better management of a temple must necessarily show therein the properties of the temple. Before deciding of frame a scheme the authority framing the scheme must know the nature and extent of the trust funds. There can be no scheme of management of a temple in vacuum. As observed by the Judicial Committee in Chotalal Lakhmiram and Others v. Manohar Ganesh Tambekar and Others (ILR XXIV Bom 50) :"Until the trust funds are ascertained, it seems impossible that any scheme can be settled."Varadachariar, J., in (Sri Mahant) Sitaram Dass Bavaji v. Madras Religious Endowment Board, Madras and Others (AIR 1937 Mad 106 ); observed that the power given by Section 63 to the Board for framing a scheme for the management of a Mutt, a power similar to that conferred on the Board under Section 57 for framing scheme for the management of a temple carries with it the power to settle what the properties of the institution are. A scheme for proper administration of a temple must necessarily provide for the proper administration of its assets. The persons empowered to manage must know what properties are to be governed by the scheme and what the resources of the temple are.7. It is not correct to say that the power conferred on the Board under Section 57 is a summary power as urged by the learned for the appellant. A decision rendered by the Board under that section is final subject to the result of the suit contemplated in the said section. Section 57 provides for an exhaustive enquiry in the matter of framing scheme, firstly by the Board and then by the Court. The trial before the Court has to be held in the same manner as any other suit that may be instituted under the provisions of the Civil Procedure Code. In Arikapudi Balakotayya v. Yadlapalli Nagayya ((AIR) (33) 1946 Mad 509); a Division Bench of the Madras High Court held that the order made by the District Court under Section 84 (2) of the Act operates as res judicata in a subsequent proceeding. Under Section 84 (1) the Board is given power to decide if any dispute arises as to : (a) whether an institution is a Math or temple as defined to the Act; (b) whether the trustee is a hereditary trustee as defined in the Act or not, and (c) whether any property or money endowed is a specific endowment as defined in the Act or not. Sub-section (2) of that section provides that any person affected by a decision under sub-section (1) may, within six months apply to the Court to modify or set aside that decision. Sub-section (3) thereof provides for an appeal to the High Court against the order of the District Judge. Sub-section (4) of that section provides that subject to the result of an application under sub-section (2) or an appeal under sub-section (3), the decision of the Board shall be final.8. In Balakotayyas case (supra) while examining the effect of a decision under Section 84 (2), it was observed that the doctrine of res judicata is not confined to a decision in a suit but it applies to decisions in other proceedings as well. But how far a decision which is rendered in other proceedings will bind the parties depends upon other considerations one of which is whether that decision determines substantial rights of parties and the other is whether the parties are given adequate opportunities to establish the rights pleaded by them. The doctrine of res judicata is not confined to the limits prescribed in Section 11, Civil Procedure Code. The underlying principle of that doctrine is that there should be finality in litigation and that a person should not be vexed twice over in respect of the same matter.9. In the proceedings with which we are concerned in this appeal one of the important question the Board had to decide was whether the properties in dispute are Archakatwam service Inam properties. The Boards decision which was adverse to the temple, affected the rights of the temple in a substantial manner. It was open to the temple to get its right established by means of a suit under Section 57 (3). It failed to take that step. Therefore the decision of the Board has become final and binding on the temple. In State of Madras v. Kunnakudi Melamatam alias Annathana Matam ((1962) 2 MLJ 13 ) this Court held that a decision of the Board under Section 84 (1) which had become final in the absence of any application to the Court to set aside that decision under Section 84 (2), holding that the institution was outside the purview of the Act, bars the Board from levying any contribution on the institution under the Act subsequently.10. In our judgment the decision of the Board in 1931 that the suit properties are not temple properties operates as res judicata in the present proceeding.
### Response:
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### Explanation:
9. In the proceedings with which we are concerned in this appeal one of the important question the Board had to decide was whether the properties in dispute are Archakatwam service Inam properties. The Boards decision which was adverse to the temple, affected the rights of the temple in a substantial manner. It was open to the temple to get its right established by means of a suit under Section 57 (3). It failed to take that step. Therefore the decision of the Board has become final and binding on the temple. In State of Madras v. Kunnakudi Melamatam alias Annathana Matam ((1962) 2 MLJ 13 ) this Court held that a decision of the Board under Section 84 (1) which had become final in the absence of any application to the Court to set aside that decision under Section 84 (2), holding that the institution was outside the purview of the Act, bars the Board from levying any contribution on the institution under the Act subsequently.10. In our judgment the decision of the Board in 1931 that the suit properties are not temple properties operates as res judicata in the present proceeding.
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T.S. Swaminathaudayar Vs. The Official Receiver Of West Tanjore | charge was created there was in equity a lien or a charge created on the properties falling to the share of the third defendants branch and he did not acquire the properties which fell to his share on such partition irrespective of or discharged from the obligation to make payment of such sum out of the same. The appellant was, in our opinion, entitled to payment of the sum of Rs. 24, 257-0-8 and interest out of the properties which fell to the share of the third defendants branch on partition and which came to the possession of the respondent by reason of the insolvency of the defendant No. 3. 29. This position was rightly appreciated by the learned District Judge when he passed orders in favour of the appellant on July 14, 1945. The following passage from his judgment, in our opinion, truly reflects the position as it obtained between the appellant and the respondent: When we scrutinize these facts the conclusion is inevitable that the claim of the Respondent to the present amounts stands even higher than on the basis of the priority of a charge created in insolvency administration, whether by virtue of a security a charge created by an act of Court or a lien arising from the operation of any law or statute. In fact, it could be contended with great force that the estate in insolvency which vested in the hands of the Official Receiver consisted of certain immovable properties minus the sum directed to be paid to the present Respondent by the sale of available portions of the estate as undertaken by the Official Receiver himself. This was because O.S. No. 22 of 1924 on the file of the Kumbakonam Sub-Court was a suit of partition in which the present Respondent was a sharer and partner, exactly as the 3rd Defendants branch represented another share. In decreeing the suit, equities arose for adjustment as between the several shares, and it was found that the 3rd Defendants branch was liable to the present Respondent in respect of certain overdrawals of the 3rd defendant during the minority of the Respondent, and for certain lease amounts due. The Official Receiver represented the 3rd Defendants branch in the appeal, since the insolvency had supervened. The matter would at once be cleared from difficulty if we assume that the decree had dealth with actual sums of money instead of immovable properties. It will he obvious, in such a case that the estate which would have vested in the Official Receiver after the Appellate decree, for administration in Insolvency, would be the amount or amounts assigned to the branches of the 3rd Defendant and plaintiff at partition, as shares, deducting amounts payable to other co-sharers including the present Respondent. Merely because the estates actually consisted of immovable properties while the claim of a co-sharer like the present Respondent to an adjustment on grounds of equity, was recognized in the form of a direction to pay, by sale of a necessary portion of the estate, the central fact of the situation is not changed. In other words, the present respondent cannot be really classed as a creditor of the insolvents branch at all. In respect of the sums due to him under the partition decree directed to be paid from the estates of the plaintiff and 3rd defendant as equittable adjustment, he has really superior title, and, assuming for a moment that the direction related instead to a specific item of immovable property, it is obvious that such an item would not have formed part of the estate in insolvency at all. As Mr. T.S. Krishnamurthi Ayyar for the Official Receiver has frankly conceded, it is a well-known principle that in suits for partition the shares are first assigned upon the simple basis of division, for administrative convenience, claims inter se being worked out by specific directions for payment. Nevertheless, in law and in fact, the shares actually derived by the parties to the suit are those subject to or qualified by the directions made in adjustment. If this was the true position as it obtained, and we are of the opinion that it was, then, the orders under appeal passed by the High Court were clearly wrong. There was no justification for the respondent to ask for a withdrawal of the sum of Rs. 5,200 which he had earlier deposited into Court on January 9, 1942, or for the restitution of the sums of Rs. 5, 500 and Rs. 26,966 and Rs. 11 together with interest thereon as claimed.These monies had been paid by the respondent in pursuance of the directions contained, in the decree dated May 9, 1938 in A.S. No. 60 of 1933 and they had been rightly paid by him and they could never be the subject-matter of any execution proceedings as initiated by him. Apart from the question whether S. 144 read with S. 151 of the Civil Procedure Code was at all applicable in the circumstances of the case, we are of the opinion that the claim made by the respondent for the aforesaid sums was absolutely unjustified. We are accordingly of the opinion that the orders passed by the High Court in A.A.O. Nos. 724, 725 and 726 of 1945 were wrong and should be reversed. 30. The respondent wrote on November 21, 1953, to the Registrar of this Court to say that none of the creditors had come forward to finance the defence of the appeals and the Insolvency Court, i.e., the Sub-Court, Tanjore had ordered that the matters might be left undefended as the funds in the estate were insufficient to defend the appeals at the cost of the estate. He, therefore, requested that when the appeals were heard and decided a direction might be given by this Court that there should he no order for costs against him, We do not see how, we can absolve the respondent from liability to pay the costs which must normally follow the event. | 1[ds]If this was the true position as it obtained, and we are of the opinion that it was, then, the orders under appeal passed by the High Court were clearly wrong. There was no justification for the respondent to ask for a withdrawal of the sum of Rs. 5,200 which he had earlier deposited into Court on January 9, 1942, or for the restitution of the sums of Rs. 5, 500 and Rs. 26,966 and Rs. 11 together with interest thereon as claimed.These monies had been paid by the respondent in pursuance of the directions contained, in the decree dated May 9, 1938 in A.S. No. 60 of 1933 and they had been rightly paid by him and they could never be the subject-matter of any execution proceedings as initiated by him. Apart from the question whether S. 144 read with S. 151 of the Civil Procedure Code was at all applicable in the circumstances of the case, we are of the opinion that the claim made by the respondent for the aforesaid sums was absolutely unjustified. We are accordingly of the opinion that the orders passed by the High Court in A.A.O. Nos. 724, 725 and 726 of 1945 were wrong and should be reversed30. The respondent wrote on November 21, 1953, to the Registrar of this Court to say that none of the creditors had come forward to finance the defence of the appeals and the Insolvency Court, i.e., the Sub-Court, Tanjore had ordered that the matters might be left undefended as the funds in the estate were insufficient to defend the appeals at the cost of the estate. He, therefore, requested that when the appeals were heard and decided a direction might be given by this Court that there should he no order for costs against him, We do not see how, we can absolve the respondent from liability to pay the costs which must normally follow the event5. From this judgment the appellant appealed to this Court and these are the appeals now before us for hearing | 1 | 6,776 | 377 | ### Instruction:
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charge was created there was in equity a lien or a charge created on the properties falling to the share of the third defendants branch and he did not acquire the properties which fell to his share on such partition irrespective of or discharged from the obligation to make payment of such sum out of the same. The appellant was, in our opinion, entitled to payment of the sum of Rs. 24, 257-0-8 and interest out of the properties which fell to the share of the third defendants branch on partition and which came to the possession of the respondent by reason of the insolvency of the defendant No. 3. 29. This position was rightly appreciated by the learned District Judge when he passed orders in favour of the appellant on July 14, 1945. The following passage from his judgment, in our opinion, truly reflects the position as it obtained between the appellant and the respondent: When we scrutinize these facts the conclusion is inevitable that the claim of the Respondent to the present amounts stands even higher than on the basis of the priority of a charge created in insolvency administration, whether by virtue of a security a charge created by an act of Court or a lien arising from the operation of any law or statute. In fact, it could be contended with great force that the estate in insolvency which vested in the hands of the Official Receiver consisted of certain immovable properties minus the sum directed to be paid to the present Respondent by the sale of available portions of the estate as undertaken by the Official Receiver himself. This was because O.S. No. 22 of 1924 on the file of the Kumbakonam Sub-Court was a suit of partition in which the present Respondent was a sharer and partner, exactly as the 3rd Defendants branch represented another share. In decreeing the suit, equities arose for adjustment as between the several shares, and it was found that the 3rd Defendants branch was liable to the present Respondent in respect of certain overdrawals of the 3rd defendant during the minority of the Respondent, and for certain lease amounts due. The Official Receiver represented the 3rd Defendants branch in the appeal, since the insolvency had supervened. The matter would at once be cleared from difficulty if we assume that the decree had dealth with actual sums of money instead of immovable properties. It will he obvious, in such a case that the estate which would have vested in the Official Receiver after the Appellate decree, for administration in Insolvency, would be the amount or amounts assigned to the branches of the 3rd Defendant and plaintiff at partition, as shares, deducting amounts payable to other co-sharers including the present Respondent. Merely because the estates actually consisted of immovable properties while the claim of a co-sharer like the present Respondent to an adjustment on grounds of equity, was recognized in the form of a direction to pay, by sale of a necessary portion of the estate, the central fact of the situation is not changed. In other words, the present respondent cannot be really classed as a creditor of the insolvents branch at all. In respect of the sums due to him under the partition decree directed to be paid from the estates of the plaintiff and 3rd defendant as equittable adjustment, he has really superior title, and, assuming for a moment that the direction related instead to a specific item of immovable property, it is obvious that such an item would not have formed part of the estate in insolvency at all. As Mr. T.S. Krishnamurthi Ayyar for the Official Receiver has frankly conceded, it is a well-known principle that in suits for partition the shares are first assigned upon the simple basis of division, for administrative convenience, claims inter se being worked out by specific directions for payment. Nevertheless, in law and in fact, the shares actually derived by the parties to the suit are those subject to or qualified by the directions made in adjustment. If this was the true position as it obtained, and we are of the opinion that it was, then, the orders under appeal passed by the High Court were clearly wrong. There was no justification for the respondent to ask for a withdrawal of the sum of Rs. 5,200 which he had earlier deposited into Court on January 9, 1942, or for the restitution of the sums of Rs. 5, 500 and Rs. 26,966 and Rs. 11 together with interest thereon as claimed.These monies had been paid by the respondent in pursuance of the directions contained, in the decree dated May 9, 1938 in A.S. No. 60 of 1933 and they had been rightly paid by him and they could never be the subject-matter of any execution proceedings as initiated by him. Apart from the question whether S. 144 read with S. 151 of the Civil Procedure Code was at all applicable in the circumstances of the case, we are of the opinion that the claim made by the respondent for the aforesaid sums was absolutely unjustified. We are accordingly of the opinion that the orders passed by the High Court in A.A.O. Nos. 724, 725 and 726 of 1945 were wrong and should be reversed. 30. The respondent wrote on November 21, 1953, to the Registrar of this Court to say that none of the creditors had come forward to finance the defence of the appeals and the Insolvency Court, i.e., the Sub-Court, Tanjore had ordered that the matters might be left undefended as the funds in the estate were insufficient to defend the appeals at the cost of the estate. He, therefore, requested that when the appeals were heard and decided a direction might be given by this Court that there should he no order for costs against him, We do not see how, we can absolve the respondent from liability to pay the costs which must normally follow the event.
### Response:
1
### Explanation:
If this was the true position as it obtained, and we are of the opinion that it was, then, the orders under appeal passed by the High Court were clearly wrong. There was no justification for the respondent to ask for a withdrawal of the sum of Rs. 5,200 which he had earlier deposited into Court on January 9, 1942, or for the restitution of the sums of Rs. 5, 500 and Rs. 26,966 and Rs. 11 together with interest thereon as claimed.These monies had been paid by the respondent in pursuance of the directions contained, in the decree dated May 9, 1938 in A.S. No. 60 of 1933 and they had been rightly paid by him and they could never be the subject-matter of any execution proceedings as initiated by him. Apart from the question whether S. 144 read with S. 151 of the Civil Procedure Code was at all applicable in the circumstances of the case, we are of the opinion that the claim made by the respondent for the aforesaid sums was absolutely unjustified. We are accordingly of the opinion that the orders passed by the High Court in A.A.O. Nos. 724, 725 and 726 of 1945 were wrong and should be reversed30. The respondent wrote on November 21, 1953, to the Registrar of this Court to say that none of the creditors had come forward to finance the defence of the appeals and the Insolvency Court, i.e., the Sub-Court, Tanjore had ordered that the matters might be left undefended as the funds in the estate were insufficient to defend the appeals at the cost of the estate. He, therefore, requested that when the appeals were heard and decided a direction might be given by this Court that there should he no order for costs against him, We do not see how, we can absolve the respondent from liability to pay the costs which must normally follow the event5. From this judgment the appellant appealed to this Court and these are the appeals now before us for hearing
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M/s Tamil Nadu State Marketing Corporation Ltd Vs. Union of India and others | aggrieved and dissatisfied with the impugned judgment and order dated 11.03.2020 passed by the High Court of Judicature at Madras in Writ Petition No. 6284 of 2020, by which the High Court has not entertained the said writ petition at this stage and consequently has dismissed the said writ petition without deciding the issue involved in the writ petition on merits, the original writ petitioner has preferred the present appeal. 3. That the appellant herein - original writ petitioner filed the aforesaid writ petition before the High Court challenging the validity of Section 40(a)(iib) of the Income Tax Act, 1961. It was the case on behalf of the original writ petitioner that the amount which is deductible in computing the income chargeable in terms of the Income Tax Act is not being allowed under the garb of the aforesaid provision. According to the original writ petitioner, the said provision is discriminatory and violative of Article 14 of the Constitution of India, inasmuch as there are many Central Government undertakings which have not been subjected to any such computation of income tax and are enjoying exemption. At this stage it is required to be noted that a show cause notice was issued by the assessing officer for the Assessment Year 2017-18 stating that the VAT expense levied on the appellant is an exclusive levy by the State Government and therefore squarely covered by Section 40(a)(iib) of the Income Tax Act and therefore VAT expenditure is not allowable as deduction in accordance with Section 40(a)(iib) of the Income Tax Act, while computing the income of the appellant. That the assessing officer finalised the assessment and passed the assessment order for the Assessment Year 2017-18 vide order dated 30.12.2019. 3.1 The High Court vide judgment and order dated 26.02.2020 in Writ Petition No. 538 of 2020 set aside the assessment order dated 30.12.2019 insofar as disallowance in terms of Section 40(a)(iib), on the ground of violation of principles of natural justice. Thus, the matter was pending before the assessing officer. The appellant thereafter filed the present writ petition No. 6284 of 2020 before the High Court challenging the vires of Section 40(a)(iib) of the Income Tax Act being ultra vires Articles 14, 19 and 265 of the Constitution of India. By the impugned judgment and order, as observed hereinabove, the High Court has dismissed the said writ petition without deciding the validity of Section 40(a)(iib) of the Income Tax Act by observing that the issue of raising a challenge to the vires of the provision at this stage need not be entertained as the matter is still sub judice before the Income Tax Authority, even though it is open to the aggrieved party to question the same at the appropriate moment. 3.2 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court in dismissing the said writ petition, without deciding the vires of Section 40(a)(iib)of the Income Tax Act on merits, the original writ petitioner - M/s Tamil Nadu State Marketing Corporation Limited has preferred the present appeal. 4. Having heard Shri Rakesh Dwivedi, learned Senior Advocate appearing on behalf of the appellant and Shri K.M. Natraj, learned Additional Solicitor General appearing on behalf of the Union of India and others and considering the impugned judgment and order passed by the High Court by which the High Court has dismissed the said writ petition without deciding the vires of Section 40(a)(iib) of the Income Tax Act on merits, we are of the firm opinion that the impugned judgment and order passed by the High Court is not sustainable at all. 5. When the vires of Section 40(a)(iib) of the Income Tax Act were challenged, which can be decided by the High Court alone in exercise of powers under Article 226 of the Constitution of India, the High Court ought to have decided the issue with regard to vires of Section 40(a)(iib) on merits, irrespective of the fact whether the matter was sub judice before the Income Tax Authority. Vires of a relevant provision goes to the root of the matter. The High Court has observed that the issue of raising a challenge to the vires of the provision at this stage need not be entertained, as the matter is still sub judice before the Income Tax Authority, even though it is open to the aggrieved party to question the same at the appropriate moment. Once the show cause notice was issued by the assessing officer calling upon the appellant - assessee to show cause why the VAT expenditure is not allowable as deduction in accordance with Section 40(a)(iib) of the Income Tax Act, while computing the income of the appellant, it can be said that the cause of action has arisen for the appellant to challenge the vires of Section 40(a)(iib) of the Income Tax Act and the appellant may not have to wait till the assessment proceedings before the Income Tax Authority are finalised. The stage at which the appellant approached the High Court and challenged the vires of Section 40(a)(iib) of the Income Tax Act can be said to be an appropriate moment. Therefore, the High Court ought to have decided the issue with respect to the challenge to the vires of Section 40(a)(iib) of the Income Tax Act on merits. The High Court has failed to exercise the powers vested in it under Article 226 of the Constitution of India by not deciding the writ petition on merits and not deciding the challenge to the vires of Section 40(a)(iib) of the Income Tax Act on merits. 6. In view of the above and as the High Court has not decided the issue with respect to vires of Section 40(a)(iib) of the Income Tax Act on merits, the matter is required to be remanded to the High Court to decide the writ petition on merits and decide the question with respect to challenge to the vires of Section 40(a)(iib) of the Income Tax Act on merits. | 1[ds]4. Having heard Shri Rakesh Dwivedi, learned Senior Advocate appearing on behalf of the appellant and Shri K.M. Natraj, learned Additional Solicitor General appearing on behalf of the Union of India and others and considering the impugned judgment and order passed by the High Court by which the High Court has dismissed the said writ petition without deciding the vires of Section 40(a)(iib) of the Income Tax Act on merits, we are of the firm opinion that the impugned judgment and order passed by the High Court is not sustainable at all.5. When the vires of Section 40(a)(iib) of the Income Tax Act were challenged, which can be decided by the High Court alone in exercise of powers under Article 226 of the Constitution of India, the High Court ought to have decided the issue with regard to vires of Section 40(a)(iib) on merits, irrespective of the fact whether the matter was sub judice before the Income Tax Authority. Vires of a relevant provision goes to the root of the matter. The High Court has observed that the issue of raising a challenge to the vires of the provision at this stage need not be entertained, as the matter is still sub judice before the Income Tax Authority, even though it is open to the aggrieved party to question the same at the appropriate moment. Once the show cause notice was issued by the assessing officer calling upon the appellant - assessee to show cause why the VAT expenditure is not allowable as deduction in accordance with Section 40(a)(iib) of the Income Tax Act, while computing the income of the appellant, it can be said that the cause of action has arisen for the appellant to challenge the vires of Section 40(a)(iib) of the Income Tax Act and the appellant may not have to wait till the assessment proceedings before the Income Tax Authority are finalised. The stage at which the appellant approached the High Court and challenged the vires of Section 40(a)(iib) of the Income Tax Act can be said to be an appropriate moment. Therefore, the High Court ought to have decided the issue with respect to the challenge to the vires of Section 40(a)(iib) of the Income Tax Act on merits. The High Court has failed to exercise the powers vested in it under Article 226 of the Constitution of India by not deciding the writ petition on merits and not deciding the challenge to the vires of Section 40(a)(iib) of the Income Tax Act on merits.6. In view of the above and as the High Court has not decided the issue with respect to vires of Section 40(a)(iib) of the Income Tax Act on merits, the matter is required to be remanded to the High Court to decide the writ petition on merits and decide the question with respect to challenge to the vires of Section 40(a)(iib) of the Income Tax Act on merits. | 1 | 1,171 | 575 | ### Instruction:
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aggrieved and dissatisfied with the impugned judgment and order dated 11.03.2020 passed by the High Court of Judicature at Madras in Writ Petition No. 6284 of 2020, by which the High Court has not entertained the said writ petition at this stage and consequently has dismissed the said writ petition without deciding the issue involved in the writ petition on merits, the original writ petitioner has preferred the present appeal. 3. That the appellant herein - original writ petitioner filed the aforesaid writ petition before the High Court challenging the validity of Section 40(a)(iib) of the Income Tax Act, 1961. It was the case on behalf of the original writ petitioner that the amount which is deductible in computing the income chargeable in terms of the Income Tax Act is not being allowed under the garb of the aforesaid provision. According to the original writ petitioner, the said provision is discriminatory and violative of Article 14 of the Constitution of India, inasmuch as there are many Central Government undertakings which have not been subjected to any such computation of income tax and are enjoying exemption. At this stage it is required to be noted that a show cause notice was issued by the assessing officer for the Assessment Year 2017-18 stating that the VAT expense levied on the appellant is an exclusive levy by the State Government and therefore squarely covered by Section 40(a)(iib) of the Income Tax Act and therefore VAT expenditure is not allowable as deduction in accordance with Section 40(a)(iib) of the Income Tax Act, while computing the income of the appellant. That the assessing officer finalised the assessment and passed the assessment order for the Assessment Year 2017-18 vide order dated 30.12.2019. 3.1 The High Court vide judgment and order dated 26.02.2020 in Writ Petition No. 538 of 2020 set aside the assessment order dated 30.12.2019 insofar as disallowance in terms of Section 40(a)(iib), on the ground of violation of principles of natural justice. Thus, the matter was pending before the assessing officer. The appellant thereafter filed the present writ petition No. 6284 of 2020 before the High Court challenging the vires of Section 40(a)(iib) of the Income Tax Act being ultra vires Articles 14, 19 and 265 of the Constitution of India. By the impugned judgment and order, as observed hereinabove, the High Court has dismissed the said writ petition without deciding the validity of Section 40(a)(iib) of the Income Tax Act by observing that the issue of raising a challenge to the vires of the provision at this stage need not be entertained as the matter is still sub judice before the Income Tax Authority, even though it is open to the aggrieved party to question the same at the appropriate moment. 3.2 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court in dismissing the said writ petition, without deciding the vires of Section 40(a)(iib)of the Income Tax Act on merits, the original writ petitioner - M/s Tamil Nadu State Marketing Corporation Limited has preferred the present appeal. 4. Having heard Shri Rakesh Dwivedi, learned Senior Advocate appearing on behalf of the appellant and Shri K.M. Natraj, learned Additional Solicitor General appearing on behalf of the Union of India and others and considering the impugned judgment and order passed by the High Court by which the High Court has dismissed the said writ petition without deciding the vires of Section 40(a)(iib) of the Income Tax Act on merits, we are of the firm opinion that the impugned judgment and order passed by the High Court is not sustainable at all. 5. When the vires of Section 40(a)(iib) of the Income Tax Act were challenged, which can be decided by the High Court alone in exercise of powers under Article 226 of the Constitution of India, the High Court ought to have decided the issue with regard to vires of Section 40(a)(iib) on merits, irrespective of the fact whether the matter was sub judice before the Income Tax Authority. Vires of a relevant provision goes to the root of the matter. The High Court has observed that the issue of raising a challenge to the vires of the provision at this stage need not be entertained, as the matter is still sub judice before the Income Tax Authority, even though it is open to the aggrieved party to question the same at the appropriate moment. Once the show cause notice was issued by the assessing officer calling upon the appellant - assessee to show cause why the VAT expenditure is not allowable as deduction in accordance with Section 40(a)(iib) of the Income Tax Act, while computing the income of the appellant, it can be said that the cause of action has arisen for the appellant to challenge the vires of Section 40(a)(iib) of the Income Tax Act and the appellant may not have to wait till the assessment proceedings before the Income Tax Authority are finalised. The stage at which the appellant approached the High Court and challenged the vires of Section 40(a)(iib) of the Income Tax Act can be said to be an appropriate moment. Therefore, the High Court ought to have decided the issue with respect to the challenge to the vires of Section 40(a)(iib) of the Income Tax Act on merits. The High Court has failed to exercise the powers vested in it under Article 226 of the Constitution of India by not deciding the writ petition on merits and not deciding the challenge to the vires of Section 40(a)(iib) of the Income Tax Act on merits. 6. In view of the above and as the High Court has not decided the issue with respect to vires of Section 40(a)(iib) of the Income Tax Act on merits, the matter is required to be remanded to the High Court to decide the writ petition on merits and decide the question with respect to challenge to the vires of Section 40(a)(iib) of the Income Tax Act on merits.
### Response:
1
### Explanation:
4. Having heard Shri Rakesh Dwivedi, learned Senior Advocate appearing on behalf of the appellant and Shri K.M. Natraj, learned Additional Solicitor General appearing on behalf of the Union of India and others and considering the impugned judgment and order passed by the High Court by which the High Court has dismissed the said writ petition without deciding the vires of Section 40(a)(iib) of the Income Tax Act on merits, we are of the firm opinion that the impugned judgment and order passed by the High Court is not sustainable at all.5. When the vires of Section 40(a)(iib) of the Income Tax Act were challenged, which can be decided by the High Court alone in exercise of powers under Article 226 of the Constitution of India, the High Court ought to have decided the issue with regard to vires of Section 40(a)(iib) on merits, irrespective of the fact whether the matter was sub judice before the Income Tax Authority. Vires of a relevant provision goes to the root of the matter. The High Court has observed that the issue of raising a challenge to the vires of the provision at this stage need not be entertained, as the matter is still sub judice before the Income Tax Authority, even though it is open to the aggrieved party to question the same at the appropriate moment. Once the show cause notice was issued by the assessing officer calling upon the appellant - assessee to show cause why the VAT expenditure is not allowable as deduction in accordance with Section 40(a)(iib) of the Income Tax Act, while computing the income of the appellant, it can be said that the cause of action has arisen for the appellant to challenge the vires of Section 40(a)(iib) of the Income Tax Act and the appellant may not have to wait till the assessment proceedings before the Income Tax Authority are finalised. The stage at which the appellant approached the High Court and challenged the vires of Section 40(a)(iib) of the Income Tax Act can be said to be an appropriate moment. Therefore, the High Court ought to have decided the issue with respect to the challenge to the vires of Section 40(a)(iib) of the Income Tax Act on merits. The High Court has failed to exercise the powers vested in it under Article 226 of the Constitution of India by not deciding the writ petition on merits and not deciding the challenge to the vires of Section 40(a)(iib) of the Income Tax Act on merits.6. In view of the above and as the High Court has not decided the issue with respect to vires of Section 40(a)(iib) of the Income Tax Act on merits, the matter is required to be remanded to the High Court to decide the writ petition on merits and decide the question with respect to challenge to the vires of Section 40(a)(iib) of the Income Tax Act on merits.
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Bhagwan Das Vs. The State Of Punjab | and improvements due to good husbandry or advent of irrigation should be ignored. On August 22, 1961, the Punjab High Court allowed a petition preferred by respondent No. 4 under Art. 227 of the Constitution of India and set aside the orders of the Collector, the Commissioner and the Financial Commissioner. The High Court held that the status of the appellant must be determined by evaluating his land in terms of standard acres on the date of the application for ejectment. The appellant now appeals to this Court by special leave. 3. The question is whether the appellant is a small landowner within the meaning of S. 9 (1) (I) of the Act. On a combined reading of Ss. 2, 3, 4, 5, 5A, 5B, 5C, 10A, 19A and 19B, the scheme of the Act appears to be as follows. The entire land held by the landowner in the State of Punjab on the date of the commencement of the Act must be evaluated as on that date and the status of the landowners and his surplus, area, if any, must be then ascertained. If he is then found to be a small landowner, he continues to be so for the purpose of the Act, until he acquires more land, and on taking into account the value of the land in terms of standard acres on the date of acquisition, he is found to be a big landowner. The landowner is required to make the necessary reservations or selections and to give the necessary declarations so that his status and the surplus area, if any, held by him may be so determined. If he is a small landowner at the commencement of the Act, his status is not altered by reason of improvements in the value of his land or re-allotment of land on compulsory consolidation of holdings. 4. In an unreported decision in Surja v. Financial Commissioner of Punjab, Civil Writ No. 486 of 1961 (Punj), the Punjab High Court held that the status of the landowner for the purposes of an application under S. 14A of the Act should be determined by evaluating his land on the date of the application. On the basis of this ruling, the improvements in the land subsequent to the commencement of the Act could not be ignored; but the Legislature considered that this decision had an effect of defeating the purpose of the Act. It is well known that with a view to get rid of this decision, the Legislature inserted S. 19-F (b) in the Act by the Punjab Security of Land Tenures (Amendment and Validation) Act, 1962 (Punjab Act No. 14 of 1962). The object of this amendment will appear from the following passage in the statements of Objects and Reasons published in the Punjab Gazette (Extr.), dated April 27, 1962:"Some of the recent judicial pronouncements have the effect of defeating the objectives with which the Punjab Security of Land Tenures Act 1953 was enacted and amended from time to time. Under the scheme of the parent Act a specific period was allowed for filing of reservations by the landowners the object of which was to find out whether a person was a small landowner or not. Once that was found the intention was that such a person should continue to be treated as such for the purposes of the Act so long as he did not acquire more lands. In other words, his status was not to be altered on account of improvements made on the land or reallotment of land during consolidation. However, the High Court took a different view in Civil Writ No. 486 of 1961 (Punj). Accordingly Cls. 3, 6 and 7 of the Bill seek to neutralise the effect of the aforesaid decisions" Clause 7 of the Bill related to Ss. 19-E and 19-F. The amending Act of 1962 was passed on July 4, 1962 during the pendency of the appeal in this Court. Section 19-F is retrospective in operation and is deemed to have come into force on April 15, 1953.Section 19-F (b) reads:"19-F. For the removal of doubts it is hereby declared,- xx xx xx xx (b) that for evaluating the land of any person at any time under this Act, the land owned by him immediately before the commencement of this Act. "or the land acquired by him after such commencement by inheritance or by bequest or gift from a person to whom he is an heir, shall always be evaluated for converting into standard acres as if the evaluation was being made on the date of such commencement, and that the land acquired by him after such commencement in any manner shall always be evaluated for converting into standard acres as if the evaluation was being made on the date of such acquisition." On a reading of S. 19-F (b), it would appear that for the purposes of determining the status of the landowner and evaluating his land at any time under the Act, the land owned by him immediately before the commencement of the Act must always be evaluated in terms of standard acres as if the evaluation was being made on the date of such commencement. It is not disputed that if the land held by the appellant immediately before the commencement of the Act is so evaluated, the appellant would be a small landowner. There is no scope for evaluating the subsequent improvements in the land due to consolidation operations or otherwise. The appellant did not acquire any land after the commencement of the Act. His status as a small landowner was not altered by reason of subsequent improvements or re-allotments of land on compulsory consolidation of holdings. On the date of the application for eviction, he, therefore, continued to be a small landowner. The High Court was in error in holding that the status of the appellant should be determined by evaluating his land in terms of standard acres on the date of the application for eviction. | 1[ds]On a reading of S. 19-F (b), it would appear that for the purposes of determining the status of the landowner and evaluating his land at any time under the Act, the land owned by him immediately before the commencement of the Act must always be evaluated in terms of standard acres as if the evaluation was being made on the date of such commencement. It is not disputed that if the land held by the appellant immediately before the commencement of the Act is so evaluated, the appellant would be a small landowner. There is no scope for evaluating the subsequent improvements in the land due to consolidation operations or otherwise. The appellant did not acquire any land after the commencement of the Act. His status as a small landowner was not altered by reason of subsequent improvements or re-allotments of land on compulsory consolidation of holdings. On the date of the application for eviction, he, therefore, continued to be a small landowner. The High Court was in error in holding that the status of the appellant should be determined by evaluating his land in terms of standard acres on the date of the application for eviction. | 1 | 1,638 | 217 | ### Instruction:
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and improvements due to good husbandry or advent of irrigation should be ignored. On August 22, 1961, the Punjab High Court allowed a petition preferred by respondent No. 4 under Art. 227 of the Constitution of India and set aside the orders of the Collector, the Commissioner and the Financial Commissioner. The High Court held that the status of the appellant must be determined by evaluating his land in terms of standard acres on the date of the application for ejectment. The appellant now appeals to this Court by special leave. 3. The question is whether the appellant is a small landowner within the meaning of S. 9 (1) (I) of the Act. On a combined reading of Ss. 2, 3, 4, 5, 5A, 5B, 5C, 10A, 19A and 19B, the scheme of the Act appears to be as follows. The entire land held by the landowner in the State of Punjab on the date of the commencement of the Act must be evaluated as on that date and the status of the landowners and his surplus, area, if any, must be then ascertained. If he is then found to be a small landowner, he continues to be so for the purpose of the Act, until he acquires more land, and on taking into account the value of the land in terms of standard acres on the date of acquisition, he is found to be a big landowner. The landowner is required to make the necessary reservations or selections and to give the necessary declarations so that his status and the surplus area, if any, held by him may be so determined. If he is a small landowner at the commencement of the Act, his status is not altered by reason of improvements in the value of his land or re-allotment of land on compulsory consolidation of holdings. 4. In an unreported decision in Surja v. Financial Commissioner of Punjab, Civil Writ No. 486 of 1961 (Punj), the Punjab High Court held that the status of the landowner for the purposes of an application under S. 14A of the Act should be determined by evaluating his land on the date of the application. On the basis of this ruling, the improvements in the land subsequent to the commencement of the Act could not be ignored; but the Legislature considered that this decision had an effect of defeating the purpose of the Act. It is well known that with a view to get rid of this decision, the Legislature inserted S. 19-F (b) in the Act by the Punjab Security of Land Tenures (Amendment and Validation) Act, 1962 (Punjab Act No. 14 of 1962). The object of this amendment will appear from the following passage in the statements of Objects and Reasons published in the Punjab Gazette (Extr.), dated April 27, 1962:"Some of the recent judicial pronouncements have the effect of defeating the objectives with which the Punjab Security of Land Tenures Act 1953 was enacted and amended from time to time. Under the scheme of the parent Act a specific period was allowed for filing of reservations by the landowners the object of which was to find out whether a person was a small landowner or not. Once that was found the intention was that such a person should continue to be treated as such for the purposes of the Act so long as he did not acquire more lands. In other words, his status was not to be altered on account of improvements made on the land or reallotment of land during consolidation. However, the High Court took a different view in Civil Writ No. 486 of 1961 (Punj). Accordingly Cls. 3, 6 and 7 of the Bill seek to neutralise the effect of the aforesaid decisions" Clause 7 of the Bill related to Ss. 19-E and 19-F. The amending Act of 1962 was passed on July 4, 1962 during the pendency of the appeal in this Court. Section 19-F is retrospective in operation and is deemed to have come into force on April 15, 1953.Section 19-F (b) reads:"19-F. For the removal of doubts it is hereby declared,- xx xx xx xx (b) that for evaluating the land of any person at any time under this Act, the land owned by him immediately before the commencement of this Act. "or the land acquired by him after such commencement by inheritance or by bequest or gift from a person to whom he is an heir, shall always be evaluated for converting into standard acres as if the evaluation was being made on the date of such commencement, and that the land acquired by him after such commencement in any manner shall always be evaluated for converting into standard acres as if the evaluation was being made on the date of such acquisition." On a reading of S. 19-F (b), it would appear that for the purposes of determining the status of the landowner and evaluating his land at any time under the Act, the land owned by him immediately before the commencement of the Act must always be evaluated in terms of standard acres as if the evaluation was being made on the date of such commencement. It is not disputed that if the land held by the appellant immediately before the commencement of the Act is so evaluated, the appellant would be a small landowner. There is no scope for evaluating the subsequent improvements in the land due to consolidation operations or otherwise. The appellant did not acquire any land after the commencement of the Act. His status as a small landowner was not altered by reason of subsequent improvements or re-allotments of land on compulsory consolidation of holdings. On the date of the application for eviction, he, therefore, continued to be a small landowner. The High Court was in error in holding that the status of the appellant should be determined by evaluating his land in terms of standard acres on the date of the application for eviction.
### Response:
1
### Explanation:
On a reading of S. 19-F (b), it would appear that for the purposes of determining the status of the landowner and evaluating his land at any time under the Act, the land owned by him immediately before the commencement of the Act must always be evaluated in terms of standard acres as if the evaluation was being made on the date of such commencement. It is not disputed that if the land held by the appellant immediately before the commencement of the Act is so evaluated, the appellant would be a small landowner. There is no scope for evaluating the subsequent improvements in the land due to consolidation operations or otherwise. The appellant did not acquire any land after the commencement of the Act. His status as a small landowner was not altered by reason of subsequent improvements or re-allotments of land on compulsory consolidation of holdings. On the date of the application for eviction, he, therefore, continued to be a small landowner. The High Court was in error in holding that the status of the appellant should be determined by evaluating his land in terms of standard acres on the date of the application for eviction.
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Bhawani Das Vs. Jagjiwan Ram & Others | its powers of framing rules under the Code of Civil Procedure. This paragraph only contains instructions intended to be carried out by subordinate courts issued by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution. The procedure indicted in this paragraph was, therefore, not applicable to the trial of the election petition by the High Court itself. The procedure that the High Court was required to follows was that laid down by the Code of Civil Procedure which, as we have indicated earlier, gave the right to the appellant to state his case and produce his evidence only after Respondent No. 1 had completed the production of his evidence.6. It is also significant that, in filing the list of witnesses, the appellant did not make any request for issue of summons. The Court, no doubt, in its order, stated that the appellant had filed "process for 10 witnesses"; but, in fact, there was no process filed at all. All that was filed was a list of witnesses with a note in the list itself that the witnesses were to be kept present by the appellant. The appellant, thus, did not desire that summons should be issued to enforce attendance of the witnesses. He himself undertook to keep them present. No process was, therefore, required to be issued in pursuance of this list. Obviously, such a list of witnesses would be one envisaged by Rule 1-A of Order XVI, C.P.C. It is true that Rule 1-A Order XVI, C.P.C. refers to a list which has been filed on or before the day fixed for the hearing of evidence, and in this case the hearing of evidence of Respondent No. 1 had started on 15th January, 1968, but, in our opinion, in this rule, the expression "at any time on or before the day fixed for the hearing of evidence" is meant to indicate the day fixed for the hearing of the evidence of the particular party who has filed the list of witnesses. No doubt, in the present case, at an earlier stage, the Court had fixed dates for recording of evidence of opposite parties between 25th January and 7th February, 1968, but that orders became infructuous, because the evidence of Respondent No. 1 himself was to concluded before that period had expired. In fact, the recording of the evidence of Respondent No. 1 continued for another 7 months or more and was only completed on 16th September, 1968. The dates for the recording of evidence of the opposite parties, including the appelant, could only be some dates after 16th September, 1968, in accordance with the procedure laid down in Order XVIII, Rule 2(2), C.P.C. The list, which was field by the appellant was, therefore, one presented before the date fixed for the hearing of evidence of the appellant and the appellant had himself undertaken to keep the witnesses present. The order of the Court disallowing the production of witnesses mentioned in the list was, therefore, very clearly against the procedure applicable to the trial of the election petition.7. The only power, which the Court had to refuse the examination of these witnesses, on which reliance was placed on behalf of Respondent No. 1 is that contained in the proviso to Section 87 of the Act which lays down that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witnesses or witnesses if it is of the opinion that the evidence of such witnesses or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. In the present case, the High Court clearly did not purport to pass its order under this proviso, because it does not state that, in its opinion, the evidence of any of the witnesses disallowed was not material for the decision of the petition or that their evidence was being tendered on frivolous grounds, or with a view to delay the proceedings. Even though the list was filed on 26th August, 1968, it could not obviously result in delaying the proceedings, because the stage had not yet been reached for the production of witnesses by the appellant, and the appellant was ready to produce the witnesses and keep them present on whatever date the Court fixed for the recording of his evidence. The proviso to Section 87 of the Act was, thus, not applicable in the circumstances of the present case.8. It also appears that the High Court of Madhya Pradesh, in exercise of its power under the Code of Civil Procedure, has added sub-rule (4) to Rule 2, Order XVIII of the Code to the following effect :"Notwithstanding anything contained in this rule, the Court may order that the production of evidence or the address to the Court may be in any order which it may deem fit."Even this provision has neither been applied by the High Court for the purpose of disallowing production of evidence by the appellant, nor in it, on the face of it, applicable. It seems to be clear that the High Court was acting on the lines laid down in Paragraph 18 of the instructions issued by the Court for subordinate courts, and ignored the cardinal principle that rules of procedure are meant to advance the cause of justice and are not to be applied too technically to deprive a party of a fair opportunity of putting forward his case or meeting the case sought to be proved against him. While the appellant was not seeking any adjournment and was not trying to delay the proceedings by praying for issue of processes which might have taken time, there was no reason at all why his request for examination of his witnesses whom he promised to keep present, should have been refused. The order passed by the High Court was clearly unjustified. | 1[ds]In this case, it is clear that the burden of proving the commission of the corrupt practice by the appellant with the consent of Respondent No. 2 lay on Respondent No. 1 so that, when the hearing of the election petition started, Respondent No. I was required to state his case and produce his evidence in support of the issue relating to commission of corrupt practices. Under sub-rule (2), the other parties were only required to state the case and produce their evidence thereafter. It is significant that in sub-rule (2) of Order XVIII, C.P.C., in laying down the procedure, the stage at which other parties are to be called upon to state the case and produce the evidence is very clearly indicated by using the word "then", so that there is no requirement on the part of other parties either to state their case or produce their evidence before the party, on whom the burden lies, has first produced and completed his evidence. In the present case, it is true that the recording of evidence of Respondent No. 1 began on 15th January, 1968; but for reasons with which we are not concerned, the recording, of his evidence continued and could only be completed on 16th September, 1968. Under Order XVIII, Rule 2(2), C.P.C., the opposite parties in the petition, including the appellant, could, therefore, be called upon to state their case and produce their evidence only after the 16th September, 1968. The procedure thus laid down in the Code does not envisage that any of those parties, who have to meet the case put forward by the election petitioner, should state their case or produce their evidence prior to the completion of the recording of the evidence of the electionappellant actually filed the list of his witnesses on 24th August, 1968, even prior to the completion of his evidence by Respondent No. 1. Clearly, therefore, this list of witnesses was filed by the appellant well before the stage at which he could be required to state his case and produce his evidence. We cannot understand why the High Court held that this list of witnesses had not been filed at the proper stage.5. It appears that the High Court took the view that this list had not been filed at the proper stage, because the Court had, at an earlier stage of the trial, directed all the parties to file their lists by 30th August, 1967 and had even drawn up a programme for recording of evidence of parties on 7th December, 1967. It seems that, in adopting this course, the High Court was not following the procedure laid down in the Code of Civil Procedure which does not make any provision for filing of lists or drawing up of programme of recording evidence in the course of a trial of a suit. Our attention was drawn to Para 118 of the Rules relating to the Civil Procedure Code framed by the High Court of Madhya Pradesh in exercise of the powers conferred by Article 27 of the Constitution, read with Section 23 of the Madhya Pradesh Civil Courts Act, 1958 and all other powers enabling in that behalf. This Paragraph 118 does contemplate that courts, on completion of the interlocutory stage, will generally find it convenient to fix an early date called the "settling date" for giving in lists of witnesses and paying the necessary process fee and expenses. The paragraph goes on to say that, on that date, information should be obtained that will enable the probable length of the trial to be estimated, and a date or several consecutive dates should then be fixed for recording evidence. There is a note attached saying that, on the "settling date" the Court must insist on the parties taking all steps necessary to bring the case to trial, e.g., filing a list of witnesses to whom the issue of summons is required together with necessary particulars to permit the service of summons, paying necessary process fees and expenses, and in cases where parties propose to produce witnesses and do not require the issue of summons, indicating the number of each witnesses so as to permit an estimate of the length of trial, etc. The High Court seems to have adopted the procedure laid down by it in this Paragraph 118. Clearly, this paragraph is not a rule of procedure having the force of law and is not a part of the Code of Civil Procedure. It was not a rule framed by the High Court in exercise of its powers of framing rules under the Code of Civil Procedure. This paragraph only contains instructions intended to be carried out by subordinate courts issued by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution. The procedure indicted in this paragraph was, therefore, not applicable to the trial of the election petition by the High Court itself. The procedure that the High Court was required to follows was that laid down by the Code of Civil Procedure which, as we have indicated earlier, gave the right to the appellant to state his case and produce his evidence only after Respondent No. 1 had completed the production of his evidence.6. It is also significant that, in filing the list of witnesses, the appellant did not make any request for issue of summons. The Court, no doubt, in its order, stated that the appellant had filed "process for 10 witnesses"; but, in fact, there was no process filed at all. All that was filed was a list of witnesses with a note in the list itself that the witnesses were to be kept present by the appellant. The appellant, thus, did not desire that summons should be issued to enforce attendance of the witnesses. He himself undertook to keep them present. No process was, therefore, required to be issued in pursuance of this list. Obviously, such a list of witnesses would be one envisaged by Rule 1-A of Order XVI, C.P.C. It is true that Rule 1-A Order XVI, C.P.C. refers to a list which has been filed on or before the day fixed for the hearing of evidence, and in this case the hearing of evidence of Respondent No. 1 had started on 15th January, 1968, but, in our opinion, in this rule, the expression "at any time on or before the day fixed for the hearing of evidence" is meant to indicate the day fixed for the hearing of the evidence of the particular party who has filed the list of witnesses. No doubt, in the present case, at an earlier stage, the Court had fixed dates for recording of evidence of opposite parties between 25th January and 7th February, 1968, but that orders became infructuous, because the evidence of Respondent No. 1 himself was to concluded before that period had expired. In fact, the recording of the evidence of Respondent No. 1 continued for another 7 months or more and was only completed on 16th September, 1968. The dates for the recording of evidence of the opposite parties, including the appelant, could only be some dates after 16th September, 1968, in accordance with the procedure laid down in Order XVIII, Rule 2(2), C.P.C. The list, which was field by the appellant was, therefore, one presented before the date fixed for the hearing of evidence of the appellant and the appellant had himself undertaken to keep the witnesses present. The order of the Court disallowing the production of witnesses mentioned in the list was, therefore, very clearly against the procedure applicable to the trial of the election petition.7. The only power, which the Court had to refuse the examination of these witnesses, on which reliance was placed on behalf of Respondent No. 1 is that contained in the proviso to Section 87 of the Act which lays down that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witnesses or witnesses if it is of the opinion that the evidence of such witnesses or witnesses is not material for the decision of the petition or that the partyIt also appears that the High Court of Madhya Pradesh, in exercise of its power under the Code of Civil Procedure, has added sub-rule (4) to Rule 2, Order XVIII of the Code to the following effectanything contained in this rule, the Court may order that the production of evidence or the address to the Court may be in any order which it may deemthis provision has neither been applied by the High Court for the purpose of disallowing production of evidence by the appellant, nor in it, on the face of it, applicable. It seems to be clear that the High Court was acting on the lines laid down in Paragraph 18 of the instructions issued by the Court for subordinate courts, and ignored the cardinal principle that rules of procedure are meant to advance the cause of justice and are not to be applied too technically to deprive a party of a fair opportunity of putting forward his case or meeting the case sought to be proved against him. While the appellant was not seeking any adjournment and was not trying to delay the proceedings by praying for issue of processes which might have taken time, there was no reason at all why his request for examination of his witnesses whom he promised to keep present, should have been refused. The order passed by the High Court was clearly unjustified. | 1 | 3,308 | 1,780 | ### Instruction:
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its powers of framing rules under the Code of Civil Procedure. This paragraph only contains instructions intended to be carried out by subordinate courts issued by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution. The procedure indicted in this paragraph was, therefore, not applicable to the trial of the election petition by the High Court itself. The procedure that the High Court was required to follows was that laid down by the Code of Civil Procedure which, as we have indicated earlier, gave the right to the appellant to state his case and produce his evidence only after Respondent No. 1 had completed the production of his evidence.6. It is also significant that, in filing the list of witnesses, the appellant did not make any request for issue of summons. The Court, no doubt, in its order, stated that the appellant had filed "process for 10 witnesses"; but, in fact, there was no process filed at all. All that was filed was a list of witnesses with a note in the list itself that the witnesses were to be kept present by the appellant. The appellant, thus, did not desire that summons should be issued to enforce attendance of the witnesses. He himself undertook to keep them present. No process was, therefore, required to be issued in pursuance of this list. Obviously, such a list of witnesses would be one envisaged by Rule 1-A of Order XVI, C.P.C. It is true that Rule 1-A Order XVI, C.P.C. refers to a list which has been filed on or before the day fixed for the hearing of evidence, and in this case the hearing of evidence of Respondent No. 1 had started on 15th January, 1968, but, in our opinion, in this rule, the expression "at any time on or before the day fixed for the hearing of evidence" is meant to indicate the day fixed for the hearing of the evidence of the particular party who has filed the list of witnesses. No doubt, in the present case, at an earlier stage, the Court had fixed dates for recording of evidence of opposite parties between 25th January and 7th February, 1968, but that orders became infructuous, because the evidence of Respondent No. 1 himself was to concluded before that period had expired. In fact, the recording of the evidence of Respondent No. 1 continued for another 7 months or more and was only completed on 16th September, 1968. The dates for the recording of evidence of the opposite parties, including the appelant, could only be some dates after 16th September, 1968, in accordance with the procedure laid down in Order XVIII, Rule 2(2), C.P.C. The list, which was field by the appellant was, therefore, one presented before the date fixed for the hearing of evidence of the appellant and the appellant had himself undertaken to keep the witnesses present. The order of the Court disallowing the production of witnesses mentioned in the list was, therefore, very clearly against the procedure applicable to the trial of the election petition.7. The only power, which the Court had to refuse the examination of these witnesses, on which reliance was placed on behalf of Respondent No. 1 is that contained in the proviso to Section 87 of the Act which lays down that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witnesses or witnesses if it is of the opinion that the evidence of such witnesses or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. In the present case, the High Court clearly did not purport to pass its order under this proviso, because it does not state that, in its opinion, the evidence of any of the witnesses disallowed was not material for the decision of the petition or that their evidence was being tendered on frivolous grounds, or with a view to delay the proceedings. Even though the list was filed on 26th August, 1968, it could not obviously result in delaying the proceedings, because the stage had not yet been reached for the production of witnesses by the appellant, and the appellant was ready to produce the witnesses and keep them present on whatever date the Court fixed for the recording of his evidence. The proviso to Section 87 of the Act was, thus, not applicable in the circumstances of the present case.8. It also appears that the High Court of Madhya Pradesh, in exercise of its power under the Code of Civil Procedure, has added sub-rule (4) to Rule 2, Order XVIII of the Code to the following effect :"Notwithstanding anything contained in this rule, the Court may order that the production of evidence or the address to the Court may be in any order which it may deem fit."Even this provision has neither been applied by the High Court for the purpose of disallowing production of evidence by the appellant, nor in it, on the face of it, applicable. It seems to be clear that the High Court was acting on the lines laid down in Paragraph 18 of the instructions issued by the Court for subordinate courts, and ignored the cardinal principle that rules of procedure are meant to advance the cause of justice and are not to be applied too technically to deprive a party of a fair opportunity of putting forward his case or meeting the case sought to be proved against him. While the appellant was not seeking any adjournment and was not trying to delay the proceedings by praying for issue of processes which might have taken time, there was no reason at all why his request for examination of his witnesses whom he promised to keep present, should have been refused. The order passed by the High Court was clearly unjustified.
### Response:
1
### Explanation:
to be estimated, and a date or several consecutive dates should then be fixed for recording evidence. There is a note attached saying that, on the "settling date" the Court must insist on the parties taking all steps necessary to bring the case to trial, e.g., filing a list of witnesses to whom the issue of summons is required together with necessary particulars to permit the service of summons, paying necessary process fees and expenses, and in cases where parties propose to produce witnesses and do not require the issue of summons, indicating the number of each witnesses so as to permit an estimate of the length of trial, etc. The High Court seems to have adopted the procedure laid down by it in this Paragraph 118. Clearly, this paragraph is not a rule of procedure having the force of law and is not a part of the Code of Civil Procedure. It was not a rule framed by the High Court in exercise of its powers of framing rules under the Code of Civil Procedure. This paragraph only contains instructions intended to be carried out by subordinate courts issued by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution. The procedure indicted in this paragraph was, therefore, not applicable to the trial of the election petition by the High Court itself. The procedure that the High Court was required to follows was that laid down by the Code of Civil Procedure which, as we have indicated earlier, gave the right to the appellant to state his case and produce his evidence only after Respondent No. 1 had completed the production of his evidence.6. It is also significant that, in filing the list of witnesses, the appellant did not make any request for issue of summons. The Court, no doubt, in its order, stated that the appellant had filed "process for 10 witnesses"; but, in fact, there was no process filed at all. All that was filed was a list of witnesses with a note in the list itself that the witnesses were to be kept present by the appellant. The appellant, thus, did not desire that summons should be issued to enforce attendance of the witnesses. He himself undertook to keep them present. No process was, therefore, required to be issued in pursuance of this list. Obviously, such a list of witnesses would be one envisaged by Rule 1-A of Order XVI, C.P.C. It is true that Rule 1-A Order XVI, C.P.C. refers to a list which has been filed on or before the day fixed for the hearing of evidence, and in this case the hearing of evidence of Respondent No. 1 had started on 15th January, 1968, but, in our opinion, in this rule, the expression "at any time on or before the day fixed for the hearing of evidence" is meant to indicate the day fixed for the hearing of the evidence of the particular party who has filed the list of witnesses. No doubt, in the present case, at an earlier stage, the Court had fixed dates for recording of evidence of opposite parties between 25th January and 7th February, 1968, but that orders became infructuous, because the evidence of Respondent No. 1 himself was to concluded before that period had expired. In fact, the recording of the evidence of Respondent No. 1 continued for another 7 months or more and was only completed on 16th September, 1968. The dates for the recording of evidence of the opposite parties, including the appelant, could only be some dates after 16th September, 1968, in accordance with the procedure laid down in Order XVIII, Rule 2(2), C.P.C. The list, which was field by the appellant was, therefore, one presented before the date fixed for the hearing of evidence of the appellant and the appellant had himself undertaken to keep the witnesses present. The order of the Court disallowing the production of witnesses mentioned in the list was, therefore, very clearly against the procedure applicable to the trial of the election petition.7. The only power, which the Court had to refuse the examination of these witnesses, on which reliance was placed on behalf of Respondent No. 1 is that contained in the proviso to Section 87 of the Act which lays down that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witnesses or witnesses if it is of the opinion that the evidence of such witnesses or witnesses is not material for the decision of the petition or that the partyIt also appears that the High Court of Madhya Pradesh, in exercise of its power under the Code of Civil Procedure, has added sub-rule (4) to Rule 2, Order XVIII of the Code to the following effectanything contained in this rule, the Court may order that the production of evidence or the address to the Court may be in any order which it may deemthis provision has neither been applied by the High Court for the purpose of disallowing production of evidence by the appellant, nor in it, on the face of it, applicable. It seems to be clear that the High Court was acting on the lines laid down in Paragraph 18 of the instructions issued by the Court for subordinate courts, and ignored the cardinal principle that rules of procedure are meant to advance the cause of justice and are not to be applied too technically to deprive a party of a fair opportunity of putting forward his case or meeting the case sought to be proved against him. While the appellant was not seeking any adjournment and was not trying to delay the proceedings by praying for issue of processes which might have taken time, there was no reason at all why his request for examination of his witnesses whom he promised to keep present, should have been refused. The order passed by the High Court was clearly unjustified.
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UNION OF INDIA Vs. MD. SAMIM AZAD | 2016. On the request made by the respondent-original writ petitioner, during the lifetime of his father he was allowed to sell tickets in the halt station at Pirtala. By notification dated 16 th February 2017, the appellants have issued advertisement inviting applications for appointing the contractor. The respondent-original writ petitioner also participated in the selection process for the purpose of appointment as a contractor. Though he was one of the shortlisted candidates, in the method adopted for finalisation of contract by draw of lots, he was not successful. 5. When the respondent-original writ petitioner was not appointed, having participated in the selection process, he filed abovementioned Writ Petition before High Court of Calcutta mainly on the ground that as he has continued as a halt contractor in the place of his father and having regard to guidelines issued in Circular no.99/TIV/Halts/Policy dated 17.05.1999, he is entitled for preference in appointment. The learned Single Judge of the Calcutta High Court, by order dated 25.04.2017, by recording a finding that on the date of death of the father of writ petitioner, the contract between Railways and the deceased father of the original writ petitioner, was not existing, rejected the claim made by the respondent-original writ petitioner.6. Against the said order, the respondent-original writ petitioner has filed intra-Court appeal before the High Court and Division Bench of the High Court has allowed the appeal by setting aside the order impugned in the petition with the direction to the Railway authorities to grant preference to the original writ petitioner in terms of clause VI of the Circular dated 17.05.1999 and to appoint him as a halt contractor at Pirtala Halt Station within a period of four weeks from the date of the order. 7. We have heard Ms. Pinky Anand, learned Additional Solicitor General assisted by Mrs. Anil Katiyar, learned counsel for the appellants and Mr. R.K. Gupta, assisted by Mr. Shekhar Kumar, learned counsel appearing for the respondent-original writ petitioner.8. Having heard the learned counsel on both sides, we have perused the order passed by the learned Single Judge and also the impugned order passed by the Division Bench of the Calcutta High Court and other material placed on record.9. It is not in dispute that the father of the respondent-original writ petitioner was appointed as a halt contractor, but contract period expired in the year2010. Thereafter, there was no renewal of contract either in the name of the deceased father or in the name of the writ petitioner. The father of respondent-original writ petitioner died on 05.12.2016. Though the contract in favour of the original petitioner expired in the year 2010, on request made by the respondent-original writ petitioner, he was allowed to sell tickets on behalf of the Railways. Clause VI of the circular dated 17.05.1999 of which benefit is claimed by the respondent-original writ petitioner, reads as under : ?VI. Appointment of heirs and successors of deceased halt contractors :Appointment of heirs and successors of deceased halt contractors, in the event of death of the halt contractor, may be considered along with other applicants and preference will be given to the heirs, all other things being equal.?10. In the impugned order, the Division Bench of the Calcutta High Court has held that as the appellants have permitted the respondent-original writ petitioner to work in the place of his ailing father, as such, he is to be given the benefit of the circular. It is not in dispute that the contract was valid only up to the year 2010. Merely because the respondent-original petitioner was permitted by the appellant-Railway authorities to work in the place of his ailing father, he cannot, as a matter of right, claim preference as an heir of contractor. Further, it is also to be noticed that when the notification was issued inviting applications, he has participated in the selection process but when he was not emerged as a successful person for award of the contract, he has filed writ petition questioning the appointment of new contractor. As the contract which expired in the year 2010, was not renewed either in the name of the deceased father of the original writ petitioner or in the name of the writ petitioner, we are of the view that the High Court committed error in directing to give preference and to appoint him as the halt contractor. Merely because, the respondent-original writ petitioner was permitted to act as a halt contractor on his request, he cannot be treated as an existing contractor. Undoubtedly, the contract which was granted to his late father was expired in the year 2010. It appears from the notification issued by the appellant authorities inviting applications for award of contract for selling tickets that they have permitted, the existing contractors and the contractors whose term is coming to an end within a period of 90 days, to apply in response to notification.11. In view of the expiry of the contract of his late father in the year 2010, the respondent cannot claim as an heir of contractor for giving preference, as pleaded by him. In any event, we are of the view that no right of the writ petitioner, much less any fundamental right, is violated so as to seek directions for his appointment as a halt contractor as granted by the Division Bench of the High Court. 12. It is also brought to our notice by the learned Additional Solicitor General, in the course of hearing, by referring to the rejoinder affidavit filed by the appellants, that the respondent was allowed only on his request when it was represented that his father was sick and in his place he was allowed to work temporarily on sympathetic and humanitarian grounds. It is specifically stated in the rejoinder that the father of the writ petitioner was also working as a Primary School Teacher under the Department of Primary School Education, Government of West Bengal and gained unlawfully pecuniary benefits from both Central Government and State Government organisations. | 1[ds]8. Having heard the learned counsel on both sides, we have perused the order passed by the learned Single Judge and also the impugned order passed by the Division Bench of the Calcutta High Court and other material placed on record.9. It is not in dispute that the father of the respondent-original writ petitioner was appointed as a halt contractor, but contract period expired in the year2010. Thereafter, there was no renewal of contract either in the name of the deceased father or in the name of the writ petitioner. The father of respondent-original writ petitioner died on 05.12.2016. Though the contract in favour of the original petitioner expired in the year 2010, on request made by the respondent-original writ petitioner, he was allowed to sell tickets on behalf of the Railways.In the impugned order, the Division Bench of the Calcutta High Court has held that as the appellants have permitted the respondent-original writ petitioner to work in the place of his ailing father, as such, he is to be given the benefit of the circular. It is not in dispute that the contract was valid only up to the year 2010. Merely because the respondent-original petitioner was permitted by the appellant-Railway authorities to work in the place of his ailing father, he cannot, as a matter of right, claim preference as an heir of contractor. Further, it is also to be noticed that when the notification was issued inviting applications, he has participated in the selection process but when he was not emerged as a successful person for award of the contract, he has filed writ petition questioning the appointment of new contractor. As the contract which expired in the year 2010, was not renewed either in the name of the deceased father of the original writ petitioner or in the name of the writ petitioner, we are of the view that the High Court committed error in directing to give preference and to appoint him as the halt contractor. Merely because, the respondent-original writ petitioner was permitted to act as a halt contractor on his request, he cannot be treated as an existing contractor. Undoubtedly, the contract which was granted to his late father was expired in the year 2010. It appears from the notification issued by the appellant authorities inviting applications for award of contract for selling tickets that they have permitted, the existing contractors and the contractors whose term is coming to an end within a period of 90 days, to apply in response to notification.11. In view of the expiry of the contract of his late father in the year 2010, the respondent cannot claim as an heir of contractor for giving preference, as pleaded by him. In any event, we are of the view that no right of the writ petitioner, much less any fundamental right, is violated so as to seek directions for his appointment as a halt contractor as granted by the Division Bench of the High Court. | 1 | 1,307 | 544 | ### Instruction:
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2016. On the request made by the respondent-original writ petitioner, during the lifetime of his father he was allowed to sell tickets in the halt station at Pirtala. By notification dated 16 th February 2017, the appellants have issued advertisement inviting applications for appointing the contractor. The respondent-original writ petitioner also participated in the selection process for the purpose of appointment as a contractor. Though he was one of the shortlisted candidates, in the method adopted for finalisation of contract by draw of lots, he was not successful. 5. When the respondent-original writ petitioner was not appointed, having participated in the selection process, he filed abovementioned Writ Petition before High Court of Calcutta mainly on the ground that as he has continued as a halt contractor in the place of his father and having regard to guidelines issued in Circular no.99/TIV/Halts/Policy dated 17.05.1999, he is entitled for preference in appointment. The learned Single Judge of the Calcutta High Court, by order dated 25.04.2017, by recording a finding that on the date of death of the father of writ petitioner, the contract between Railways and the deceased father of the original writ petitioner, was not existing, rejected the claim made by the respondent-original writ petitioner.6. Against the said order, the respondent-original writ petitioner has filed intra-Court appeal before the High Court and Division Bench of the High Court has allowed the appeal by setting aside the order impugned in the petition with the direction to the Railway authorities to grant preference to the original writ petitioner in terms of clause VI of the Circular dated 17.05.1999 and to appoint him as a halt contractor at Pirtala Halt Station within a period of four weeks from the date of the order. 7. We have heard Ms. Pinky Anand, learned Additional Solicitor General assisted by Mrs. Anil Katiyar, learned counsel for the appellants and Mr. R.K. Gupta, assisted by Mr. Shekhar Kumar, learned counsel appearing for the respondent-original writ petitioner.8. Having heard the learned counsel on both sides, we have perused the order passed by the learned Single Judge and also the impugned order passed by the Division Bench of the Calcutta High Court and other material placed on record.9. It is not in dispute that the father of the respondent-original writ petitioner was appointed as a halt contractor, but contract period expired in the year2010. Thereafter, there was no renewal of contract either in the name of the deceased father or in the name of the writ petitioner. The father of respondent-original writ petitioner died on 05.12.2016. Though the contract in favour of the original petitioner expired in the year 2010, on request made by the respondent-original writ petitioner, he was allowed to sell tickets on behalf of the Railways. Clause VI of the circular dated 17.05.1999 of which benefit is claimed by the respondent-original writ petitioner, reads as under : ?VI. Appointment of heirs and successors of deceased halt contractors :Appointment of heirs and successors of deceased halt contractors, in the event of death of the halt contractor, may be considered along with other applicants and preference will be given to the heirs, all other things being equal.?10. In the impugned order, the Division Bench of the Calcutta High Court has held that as the appellants have permitted the respondent-original writ petitioner to work in the place of his ailing father, as such, he is to be given the benefit of the circular. It is not in dispute that the contract was valid only up to the year 2010. Merely because the respondent-original petitioner was permitted by the appellant-Railway authorities to work in the place of his ailing father, he cannot, as a matter of right, claim preference as an heir of contractor. Further, it is also to be noticed that when the notification was issued inviting applications, he has participated in the selection process but when he was not emerged as a successful person for award of the contract, he has filed writ petition questioning the appointment of new contractor. As the contract which expired in the year 2010, was not renewed either in the name of the deceased father of the original writ petitioner or in the name of the writ petitioner, we are of the view that the High Court committed error in directing to give preference and to appoint him as the halt contractor. Merely because, the respondent-original writ petitioner was permitted to act as a halt contractor on his request, he cannot be treated as an existing contractor. Undoubtedly, the contract which was granted to his late father was expired in the year 2010. It appears from the notification issued by the appellant authorities inviting applications for award of contract for selling tickets that they have permitted, the existing contractors and the contractors whose term is coming to an end within a period of 90 days, to apply in response to notification.11. In view of the expiry of the contract of his late father in the year 2010, the respondent cannot claim as an heir of contractor for giving preference, as pleaded by him. In any event, we are of the view that no right of the writ petitioner, much less any fundamental right, is violated so as to seek directions for his appointment as a halt contractor as granted by the Division Bench of the High Court. 12. It is also brought to our notice by the learned Additional Solicitor General, in the course of hearing, by referring to the rejoinder affidavit filed by the appellants, that the respondent was allowed only on his request when it was represented that his father was sick and in his place he was allowed to work temporarily on sympathetic and humanitarian grounds. It is specifically stated in the rejoinder that the father of the writ petitioner was also working as a Primary School Teacher under the Department of Primary School Education, Government of West Bengal and gained unlawfully pecuniary benefits from both Central Government and State Government organisations.
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8. Having heard the learned counsel on both sides, we have perused the order passed by the learned Single Judge and also the impugned order passed by the Division Bench of the Calcutta High Court and other material placed on record.9. It is not in dispute that the father of the respondent-original writ petitioner was appointed as a halt contractor, but contract period expired in the year2010. Thereafter, there was no renewal of contract either in the name of the deceased father or in the name of the writ petitioner. The father of respondent-original writ petitioner died on 05.12.2016. Though the contract in favour of the original petitioner expired in the year 2010, on request made by the respondent-original writ petitioner, he was allowed to sell tickets on behalf of the Railways.In the impugned order, the Division Bench of the Calcutta High Court has held that as the appellants have permitted the respondent-original writ petitioner to work in the place of his ailing father, as such, he is to be given the benefit of the circular. It is not in dispute that the contract was valid only up to the year 2010. Merely because the respondent-original petitioner was permitted by the appellant-Railway authorities to work in the place of his ailing father, he cannot, as a matter of right, claim preference as an heir of contractor. Further, it is also to be noticed that when the notification was issued inviting applications, he has participated in the selection process but when he was not emerged as a successful person for award of the contract, he has filed writ petition questioning the appointment of new contractor. As the contract which expired in the year 2010, was not renewed either in the name of the deceased father of the original writ petitioner or in the name of the writ petitioner, we are of the view that the High Court committed error in directing to give preference and to appoint him as the halt contractor. Merely because, the respondent-original writ petitioner was permitted to act as a halt contractor on his request, he cannot be treated as an existing contractor. Undoubtedly, the contract which was granted to his late father was expired in the year 2010. It appears from the notification issued by the appellant authorities inviting applications for award of contract for selling tickets that they have permitted, the existing contractors and the contractors whose term is coming to an end within a period of 90 days, to apply in response to notification.11. In view of the expiry of the contract of his late father in the year 2010, the respondent cannot claim as an heir of contractor for giving preference, as pleaded by him. In any event, we are of the view that no right of the writ petitioner, much less any fundamental right, is violated so as to seek directions for his appointment as a halt contractor as granted by the Division Bench of the High Court.
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Co-Operative Central Bank Ltd. & Ors Vs. Additional Industrial Tribunal, Andhrapradesh & Ors | or to have the force of law. It has no doubt been held that, , if a statute gives power to a Government or other authority to make rules, the rules so framed have the force of statute and are to be deemed to be incorporated as a part of the statute. That principle, however, does not apply to bye-laws of the nature that a co-operative society is empowered by the Act to make. The bye-laws that are contemplated by the Act can be merely those which govern the internal management, business or administration of a society.They may be binding between the persons affected by them, but they do not have the force of a statute. In respect of bye-laws laying down conditions of service of the employees of a society, the bye-laws would be binding between the society and the employees just in the same manner as conditions of service laid down by contract between the parties. In fact, after such bye-laws laying down the conditions of service are made and any person enters the employment of a society those conditions of service will have to be treated as conditions accepted by the employee when entering the service and will thus bind him like conditions of service specifically forming part of the contract of service.The bye-laws that can be framed by a society under the Act are similar in nature to the Articles of Association of a Company incorporated under the Companies Act and such Articles of Association have never been held to have the force of law. In a number of cases, conditions of service for industries are laid down by Standing Orders certified under the Industrial Employment (Standing Orders) Act, 1946, and it has been held that, though such Standing Orders are binding between the employers and the employees of the industry governed by these Standing Orders, they do not have such force of law as to be binding on Industrial Tribunal adjudicating an industrial dispute.The jurisdiction which is granted to Industrial Tribunal by the Industrial Disputes Act is not the jurisdiction of merely administering the existing laws and enforcing existing contracts. Industrial Tribunals have the right even to vary contracts of service between the employer and the employees which jurisdiction can never be exercised by a civil Court or a Registrar acting under the Co-operative Societies Act, so that the circumstance that, in granting relief on issue No.1, the Tribunal will have to vary the special bye-laws framed by the co-operative Bank does not lead to the inference that the Tribunal would be incompetent to grant the reliefs sought in this reference.In fact, the reliefs could only be granted by the Industrial Tribunal and could not fall within the scope of the powers of the Registrar dealing with a dispute under Section 61 of the Act.11. We may also, in this connection, take notice of the submission made by learned counsel that the Registrar could have granted relief under Section 16 (5) of the Act if he thought that it was advisable to grant that relief to the workmen. In our opinion, this submission must be rejected for two reasons. The first reason is that action taken by the Registrar under Section 16 (5) of the Act will not be a decision on a dispute referred to him under Section 61 of the Act. When dealing with the dispute under Section 61 of the Act, the Registrar is bound to decide the dispute in accordance with the existing bye-laws, so that, if the dispute relates to alteration of conditions of service laid down in the bye-laws, he will be incompetent to grant the relief claimed. It is also to be noticed that a dispute referred to a Registrar under Section 61 of the act may be transferred for disposal to a person who has been invested by the Government with powers in that behalf, or may be referred for disposal to an arbitrator. On the face of it, such person or arbitrator cannot possibly exercise the powers of the Registrar under Section 16 (5) of the Act. The second reason is that, under Section 16(5) of the Act, the power given to the Registrar to propose amendments in the bye-laws and to enforce them if the proposal is not accepted by a society is to be exercised only when the Registrar is of the opinion that it is necessary or desirable to do so in the interests of such society or of the co-operative movement.Amendments in bye-laws under Section 16 (5) of the Act are not contemplated in the interests of the workmen or for the purpose of resolving industrial disputes. The provisions of Section 16(5) of the Act thus appear to us to be irrelevant when considering the scope of the jurisdiction of the Registrar under Section 61 of the Act. Consequently, the decision of the High Court holding that the Tribunal had jurisdiction to deal with the industrial dispute referred to it must be upheld.12. We may also take notice of an argument advanced at the last stage by learned counsel appearing on behalf of the Banks that, in any case mattes covered by issues Nos. 2 and 3 referred to the Tribunal could have been competently decided by the Registrar, and the reference in respect of those two issues at least should be held to be incompetent. We do not think that at this stage there is any need for us to decide this question, because such a point was not raised at all in the petitions filed under Article 226 of the Constitution before the High Court. In those petitions, the competence of the reference to the Industrial Tribunal as a whole was challenged on the ground that it was barred because of the jurisdiction of the Registrar to deal with the dispute under Section 61 of the Act. Consequently, we need not deal with the question whether a particular issue forming part of the reference has been competently referred or not. | 0[ds]2. The Tribunal, and the High Court, in rejecting the plea taken on behalf of the Banks, expressed the view that the disputes actually referred to the Tribunal were not capable of being decided by the Registrar of the Co-operative Societies under Section 61 of the Act, and consequently, the reference to the Industrial Tribunal under the Industrial Disputes Act was competent.It appears to us that it is not necessary to examine in detail the reasons given by the High Courts in the above cited cases for the interpretation placed by them on provisions similar to Sec. 61 of the Act in view of a very recent decision of this Court in Deccan Merchants Co-operative Bank Ltd. v. Messrs. Dalichand Jugraj Jain, Civil Appeal No. 358 of 1967, D/- 29-8-1968 = (AIR 1969 SC 1320 ).Applying these tests, we have no doubt at all that the dispute covered by the first issue referred to the Industrial Tribunal in the present cases could not possibly be referred for decision to the Registrar under S. 61 of the Act. The dispute related to alteration of a number of conditions of service of the workmen which relief could only be granted by an Industrial Tribunal dealing with an industrial dispute. The Registrar, it is clear from the provisions of the Act, could not possibly have granted the reliefs claimed under this issue because of the limitations placed on his powers in the Act itself.It is true that Section 61 by itself does not contain any clear indication that the Registrar cannot entertain a dispute relating to alteration of conditions of service of the employees of a registered society; but the meaning given to the expression "touching the business of the society", in our opinion, makes it very doubtful whether a dispute in respect of alteration of conditions of service can be held to be covered by this expression.Since the word "business" is equated with the actual trading or commercial or other similar business activity of the society, and since it has been held that it would be difficult to subscribe to the proposition that whatever the society does or is necessarily required to do for the purpose of carrying out its objects, such as laying down the conditions of service of its employees, can be said to be a part of its business, it would appear that a dispute relating to conditions of service of the workmen employed by the society cannot be held to be a dispute touching the business of thethe position is clarified by the provisions of sub-section (4) of Section 62 of the Act which limit the power to be exercised by the Registrar, when dealing with a dispute referred to him under Section 61, by a mandate that he shall decide the dispute in accordance with the provisions of the Act and the Rules and bye-laws. On the face of it, the provisions of the Act, the rules and the bye-laws could not possibly permit the Registrar to change conditions of service of the workmen employed by the society. For the purpose of bringing facts to our notice in the present appeals, the Rules framed by the Andhra Pradesh Government under the Act, and the bye-laws of one of the appellant Banks have been placed on the Paper-books of the appeals before us. It appears from them that the conditions of service of the employees of the Bank have all been laid down by framing special bye-laws. Most of the conditions of service, which the workmen want to be altered to their benefit, have thus been laid down by the bye-laws, so that any alteration in those conditions of service will necessarily require a change in the bye-laws. Such a change could not possibly be directed by the Registrar when under Section 62 (4) of the Act, he is specifically required to decide the dispute referred to him in accordance with the provisions of the bye-laws. It may also be noticed that a dispute referred to the Registrar under Section 61 of the Act can even be transferred for disposal to a person who may have been invested by the Government with powers in that behalf, or may be referred for disposal to an arbitrator by the Registrar. Such person or arbitrator, when deciding the dispute, will also be governed by the mandate in Section 62 (4) of the Act, so that he will also be bound to reject the claim of the workmen which is nothing else than a request for alteration of conditions of service contained in the bye-laws.It is thus clear that, in respect of the dispute relating to alteration of various conditions of service, the Registrar or other person dealing with it under Section 62 of the Act in not competent to grant the relief claimed by the workmen at all. On the principle laid down by this Court in the case of the Deccan Merchants Co-operative Bank Ltd., Civil Appeal No. 358 of 1967, D/- 29-8-1968 = (AIR 1969 SC 1320 ) (supra) therefore, it must be held that this dispute is not a dispute covered by the provisions of Section 61 of the Act. Such a dispute is not contemplated to be dealt with under Section 62 of the Act and must, therefore, be held to be outside the scope of Sectionall these cases, it was held that an Industrial Tribunal acted illegally in prescribing leave in excess of the number of days laid down by the Delhi Shops and Establishments Act, 1954. In S. 22 of that Act there was a specific prohibition that leave for sickness or casual leave with full wages shall not exceed 12 days, and it was held that a direction made by the Tribunal granting to the workmen more than 12 days sickness or casual leave was illegal. The principle of the decisions in those cases does not, however, appear to us to be applicable to the cases before us, because, in the present case, there is no prohibition contained in the Act that the conditions of service prescribed are not to be altered. The argument on behalf of the Banks, however, was that the bye-laws, which contained the conditions of service, are themselves law, so that any direction made by an Industrial Tribunal altering a condition of service contained in a bye-law would be an order contrary to law and, hence illegal.10. We are unable to accept the submission that the bye-laws of a co-operative society framed in pursuance of the provisions of the Act can be held to be law or to have the force of law. It has no doubt been held that, , if a statute gives power to a Government or other authority to make rules, the rules so framed have the force of statute and are to be deemed to be incorporated as a part of the statute. That principle, however, does not apply to bye-laws of the nature that a co-operative society is empowered by the Act to make. The bye-laws that are contemplated by the Act can be merely those which govern the internal management, business or administration of a society.They may be binding between the persons affected by them, but they do not have the force of a statute. In respect of bye-laws laying down conditions of service of the employees of a society, the bye-laws would be binding between the society and the employees just in the same manner as conditions of service laid down by contract between the parties. In fact, after such bye-laws laying down the conditions of service are made and any person enters the employment of a society those conditions of service will have to be treated as conditions accepted by the employee when entering the service and will thus bind him like conditions of service specifically forming part of the contract of service.The bye-laws that can be framed by a society under the Act are similar in nature to the Articles of Association of a Company incorporated under the Companies Act and such Articles of Association have never been held to have the force of law. In a number of cases, conditions of service for industries are laid down by Standing Orders certified under the Industrial Employment (Standing Orders) Act, 1946, and it has been held that, though such Standing Orders are binding between the employers and the employees of the industry governed by these Standing Orders, they do not have such force of law as to be binding on Industrial Tribunal adjudicating an industrial dispute.The jurisdiction which is granted to Industrial Tribunal by the Industrial Disputes Act is not the jurisdiction of merely administering the existing laws and enforcing existing contracts. Industrial Tribunals have the right even to vary contracts of service between the employer and the employees which jurisdiction can never be exercised by a civil Court or a Registrar acting under the Co-operative Societies Act, so that the circumstance that, in granting relief on issue No.1, the Tribunal will have to vary the special bye-laws framed by the co-operative Bank does not lead to the inference that the Tribunal would be incompetent to grant the reliefs sought in this reference.In fact, the reliefs could only be granted by the Industrial Tribunal and could not fall within the scope of the powers of the Registrar dealing with a dispute under Section 61 of theour opinion, this submission must be rejected for two reasons. The first reason is that action taken by the Registrar under Section 16 (5) of the Act will not be a decision on a dispute referred to him under Section 61 of the Act. When dealing with the dispute under Section 61 of the Act, the Registrar is bound to decide the dispute in accordance with the existing bye-laws, so that, if the dispute relates to alteration of conditions of service laid down in the bye-laws, he will be incompetent to grant the relief claimed. It is also to be noticed that a dispute referred to a Registrar under Section 61 of the act may be transferred for disposal to a person who has been invested by the Government with powers in that behalf, or may be referred for disposal to an arbitrator. On the face of it, such person or arbitrator cannot possibly exercise the powers of the Registrar under Section 16 (5) of the Act. The second reason is that, under Section 16(5) of the Act, the power given to the Registrar to propose amendments in the bye-laws and to enforce them if the proposal is not accepted by a society is to be exercised only when the Registrar is of the opinion that it is necessary or desirable to do so in the interests of such society or of the co-operative movement.Amendments in bye-laws under Section 16 (5) of the Act are not contemplated in the interests of the workmen or for the purpose of resolving industrial disputes. The provisions of Section 16(5) of the Act thus appear to us to be irrelevant when considering the scope of the jurisdiction of the Registrar under Section 61 of the Act. Consequently, the decision of the High Court holding that the Tribunal had jurisdiction to deal with the industrial dispute referred to it must bedo not think that at this stage there is any need for us to decide this question, because such a point was not raised at all in the petitions filed under Article 226 of the Constitution before the High Court. In those petitions, the competence of the reference to the Industrial Tribunal as a whole was challenged on the ground that it was barred because of the jurisdiction of the Registrar to deal with the dispute under Section 61 of the Act. Consequently, we need not deal with the question whether a particular issue forming part of the reference has been competently referred oris no doubt true that the Act is an enactment passed by State Legislature which received the assent of the President, so that, if any provision of a Central Act, including the Industrial Disputes Act, is repugnant to any provision of the Act, the provision of the Act will prevail and not the provision of the Central Industrial Disputes Act.The general proposition urged that the jurisdiction of the Industrial Tribunal under the Industrial Disputes Act will be barred if the disputes in question can be competently decided by the Registrar under Section 61 of the Act is, therefore, correct and has to be accepted.The question, however, that has to be examined is whether the industrial dispute referred to the Tribunal in the present cases was such as was required to be referred to the Registrar and to be decided by him under Section 61 of the Act. | 0 | 6,445 | 2,292 | ### Instruction:
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or to have the force of law. It has no doubt been held that, , if a statute gives power to a Government or other authority to make rules, the rules so framed have the force of statute and are to be deemed to be incorporated as a part of the statute. That principle, however, does not apply to bye-laws of the nature that a co-operative society is empowered by the Act to make. The bye-laws that are contemplated by the Act can be merely those which govern the internal management, business or administration of a society.They may be binding between the persons affected by them, but they do not have the force of a statute. In respect of bye-laws laying down conditions of service of the employees of a society, the bye-laws would be binding between the society and the employees just in the same manner as conditions of service laid down by contract between the parties. In fact, after such bye-laws laying down the conditions of service are made and any person enters the employment of a society those conditions of service will have to be treated as conditions accepted by the employee when entering the service and will thus bind him like conditions of service specifically forming part of the contract of service.The bye-laws that can be framed by a society under the Act are similar in nature to the Articles of Association of a Company incorporated under the Companies Act and such Articles of Association have never been held to have the force of law. In a number of cases, conditions of service for industries are laid down by Standing Orders certified under the Industrial Employment (Standing Orders) Act, 1946, and it has been held that, though such Standing Orders are binding between the employers and the employees of the industry governed by these Standing Orders, they do not have such force of law as to be binding on Industrial Tribunal adjudicating an industrial dispute.The jurisdiction which is granted to Industrial Tribunal by the Industrial Disputes Act is not the jurisdiction of merely administering the existing laws and enforcing existing contracts. Industrial Tribunals have the right even to vary contracts of service between the employer and the employees which jurisdiction can never be exercised by a civil Court or a Registrar acting under the Co-operative Societies Act, so that the circumstance that, in granting relief on issue No.1, the Tribunal will have to vary the special bye-laws framed by the co-operative Bank does not lead to the inference that the Tribunal would be incompetent to grant the reliefs sought in this reference.In fact, the reliefs could only be granted by the Industrial Tribunal and could not fall within the scope of the powers of the Registrar dealing with a dispute under Section 61 of the Act.11. We may also, in this connection, take notice of the submission made by learned counsel that the Registrar could have granted relief under Section 16 (5) of the Act if he thought that it was advisable to grant that relief to the workmen. In our opinion, this submission must be rejected for two reasons. The first reason is that action taken by the Registrar under Section 16 (5) of the Act will not be a decision on a dispute referred to him under Section 61 of the Act. When dealing with the dispute under Section 61 of the Act, the Registrar is bound to decide the dispute in accordance with the existing bye-laws, so that, if the dispute relates to alteration of conditions of service laid down in the bye-laws, he will be incompetent to grant the relief claimed. It is also to be noticed that a dispute referred to a Registrar under Section 61 of the act may be transferred for disposal to a person who has been invested by the Government with powers in that behalf, or may be referred for disposal to an arbitrator. On the face of it, such person or arbitrator cannot possibly exercise the powers of the Registrar under Section 16 (5) of the Act. The second reason is that, under Section 16(5) of the Act, the power given to the Registrar to propose amendments in the bye-laws and to enforce them if the proposal is not accepted by a society is to be exercised only when the Registrar is of the opinion that it is necessary or desirable to do so in the interests of such society or of the co-operative movement.Amendments in bye-laws under Section 16 (5) of the Act are not contemplated in the interests of the workmen or for the purpose of resolving industrial disputes. The provisions of Section 16(5) of the Act thus appear to us to be irrelevant when considering the scope of the jurisdiction of the Registrar under Section 61 of the Act. Consequently, the decision of the High Court holding that the Tribunal had jurisdiction to deal with the industrial dispute referred to it must be upheld.12. We may also take notice of an argument advanced at the last stage by learned counsel appearing on behalf of the Banks that, in any case mattes covered by issues Nos. 2 and 3 referred to the Tribunal could have been competently decided by the Registrar, and the reference in respect of those two issues at least should be held to be incompetent. We do not think that at this stage there is any need for us to decide this question, because such a point was not raised at all in the petitions filed under Article 226 of the Constitution before the High Court. In those petitions, the competence of the reference to the Industrial Tribunal as a whole was challenged on the ground that it was barred because of the jurisdiction of the Registrar to deal with the dispute under Section 61 of the Act. Consequently, we need not deal with the question whether a particular issue forming part of the reference has been competently referred or not.
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have the force of statute and are to be deemed to be incorporated as a part of the statute. That principle, however, does not apply to bye-laws of the nature that a co-operative society is empowered by the Act to make. The bye-laws that are contemplated by the Act can be merely those which govern the internal management, business or administration of a society.They may be binding between the persons affected by them, but they do not have the force of a statute. In respect of bye-laws laying down conditions of service of the employees of a society, the bye-laws would be binding between the society and the employees just in the same manner as conditions of service laid down by contract between the parties. In fact, after such bye-laws laying down the conditions of service are made and any person enters the employment of a society those conditions of service will have to be treated as conditions accepted by the employee when entering the service and will thus bind him like conditions of service specifically forming part of the contract of service.The bye-laws that can be framed by a society under the Act are similar in nature to the Articles of Association of a Company incorporated under the Companies Act and such Articles of Association have never been held to have the force of law. In a number of cases, conditions of service for industries are laid down by Standing Orders certified under the Industrial Employment (Standing Orders) Act, 1946, and it has been held that, though such Standing Orders are binding between the employers and the employees of the industry governed by these Standing Orders, they do not have such force of law as to be binding on Industrial Tribunal adjudicating an industrial dispute.The jurisdiction which is granted to Industrial Tribunal by the Industrial Disputes Act is not the jurisdiction of merely administering the existing laws and enforcing existing contracts. Industrial Tribunals have the right even to vary contracts of service between the employer and the employees which jurisdiction can never be exercised by a civil Court or a Registrar acting under the Co-operative Societies Act, so that the circumstance that, in granting relief on issue No.1, the Tribunal will have to vary the special bye-laws framed by the co-operative Bank does not lead to the inference that the Tribunal would be incompetent to grant the reliefs sought in this reference.In fact, the reliefs could only be granted by the Industrial Tribunal and could not fall within the scope of the powers of the Registrar dealing with a dispute under Section 61 of theour opinion, this submission must be rejected for two reasons. The first reason is that action taken by the Registrar under Section 16 (5) of the Act will not be a decision on a dispute referred to him under Section 61 of the Act. When dealing with the dispute under Section 61 of the Act, the Registrar is bound to decide the dispute in accordance with the existing bye-laws, so that, if the dispute relates to alteration of conditions of service laid down in the bye-laws, he will be incompetent to grant the relief claimed. It is also to be noticed that a dispute referred to a Registrar under Section 61 of the act may be transferred for disposal to a person who has been invested by the Government with powers in that behalf, or may be referred for disposal to an arbitrator. On the face of it, such person or arbitrator cannot possibly exercise the powers of the Registrar under Section 16 (5) of the Act. The second reason is that, under Section 16(5) of the Act, the power given to the Registrar to propose amendments in the bye-laws and to enforce them if the proposal is not accepted by a society is to be exercised only when the Registrar is of the opinion that it is necessary or desirable to do so in the interests of such society or of the co-operative movement.Amendments in bye-laws under Section 16 (5) of the Act are not contemplated in the interests of the workmen or for the purpose of resolving industrial disputes. The provisions of Section 16(5) of the Act thus appear to us to be irrelevant when considering the scope of the jurisdiction of the Registrar under Section 61 of the Act. Consequently, the decision of the High Court holding that the Tribunal had jurisdiction to deal with the industrial dispute referred to it must bedo not think that at this stage there is any need for us to decide this question, because such a point was not raised at all in the petitions filed under Article 226 of the Constitution before the High Court. In those petitions, the competence of the reference to the Industrial Tribunal as a whole was challenged on the ground that it was barred because of the jurisdiction of the Registrar to deal with the dispute under Section 61 of the Act. Consequently, we need not deal with the question whether a particular issue forming part of the reference has been competently referred oris no doubt true that the Act is an enactment passed by State Legislature which received the assent of the President, so that, if any provision of a Central Act, including the Industrial Disputes Act, is repugnant to any provision of the Act, the provision of the Act will prevail and not the provision of the Central Industrial Disputes Act.The general proposition urged that the jurisdiction of the Industrial Tribunal under the Industrial Disputes Act will be barred if the disputes in question can be competently decided by the Registrar under Section 61 of the Act is, therefore, correct and has to be accepted.The question, however, that has to be examined is whether the industrial dispute referred to the Tribunal in the present cases was such as was required to be referred to the Registrar and to be decided by him under Section 61 of the Act.
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M/s Maya Appliances (P) Ltd. now known as Preethi Kitchen Appliances Pvt. Ltd Vs. Addl. Commissioner of Commercial Taxes & Others | Karnataka (2017) 3 SCC 467 ), a Bench of two learned judges of this Court considered the provisions of Rule 3(2)(c) of the Rules. In that case, the appellant who was a registered dealer with a business in motor vehicles issued tax invoices to its purchasers. After the sales were completed, credit notes were issued to the customers granting them discounts. As a result, the appellant retained only the net amount of the invoice less the discount reflected in the credit notes. During the course of the assessment, the appellant was subjected to orders of rectification, disallowing the deduction of post-sale discounts. This Court held thus:“28. It is a matter of common experience that in the present contemporary competitive market, trade discounts not only are dependent on variable factors but also might be strategically not disclosable at the time of the original sale/purchase so as to be coevally reflected in the tax invoice or the bill of sale, as the case may be. The actual quantification of the trade discount, depending on the nature of the trade and the related stipulations in any contract with regard thereto, may be deferred till the happening of a contemplated event, so much so that the benefit thereof is extended at a point of time subsequent to that of the original sale/purchase. That by itself, subject to proof of such regular trade practice and the contract/agreement entered into between the parties, would not render the trade discount otherwise legal and acceptable, either non est or fictitious for evading tax liability. In the above factual premise, the interpretation as sought to be provided by the Revenue would evidently reduce Section 3(2)(c) to a dead letter, ineffective and unworkable and would defeat the objective of permitting deductions from the total turnover on account of trade discount.” (Id at page 485)(emphasis supplied)Relying on the earlier decisions of this Court, it was held that a trade discount ought not to be disallowed merely on the ground that it is not payable at the time of each invoice or deducted from the invoice price. In the of view of this Court :“29…Perceptionally, if taxable turnover is to be comprised of sale/purchase price, it is beyond ones comprehension as to why the trade discount should be disallowed, subject to the proof thereof, only because it was effectuated subsequent to the original sale but evidenced by contemporaneous documents and reflected in the relevant accounts.” (Id at page 485)The Legislature, the Court held, would not be unaware of the prevalent practice of offering trade discounts in commercial dispensations. In the view of the Court:“38…To insist on the quantification of trade discount for deduction at the time of sale itself, by incorporating the same in the tax invoice/bill of sale, would be to demand the impossible for all practical purposes and thus would be illogical, irrational and absurd.” (Id at page 492)This Court accordingly read down the first proviso to Rule 3(2)(c) in the following manner:“40. On an overall review of the scheme of the Act and the Rules and the underlying objectives, in particular of Sections 29 and 30 of the Act and Rule 3 of the Rules, we are of the considered opinion that the requirement of reference of the discount in the tax invoice or bill of sale to qualify it for deduction has to be construed in relation to the transaction resulting in the final sale/purchase price and not limited to the original sale sans the trade discount. However, the transactions allowing discount have to be proved on the basis of contemporaneous records and the final sale price after deducting the trade discount must mandatorily be reflected in the accounts as stipulated under Rule 3(2)(c) of the Rules. The sale/purchase price has to be adjudged on a combined consideration of the tax invoice or bill of sale, as the case may be, along with the accounts reflecting the trade discount and the actual price paid. The first proviso has thus to be so read down, as above, to be in consonance with the true intendment of the legislature and to achieve as well the avowed objective of correct determination of the taxable turnover. The contrary interpretation accorded by the High Court being in defiance of logic and the established axioms of interpretation of statutes is thus unacceptable and is negated.” (Id at page 493)11. This view was rendered by a bench of two learned Judges, including one of us (the learned Chief Justice). Having regard to the construction which has been placed on the provisions of Rule 3(2)(c) of the Rules in Southern Motors (supra), the judgment of the High Court in the present case is accordingly unsustainable.12. The liability to pay tax is on the taxable turnover. Taxable turnover is arrived at after making permissible deductions from the total turnover. Among them are “all amounts allowed as discounts.” Such a discount must, however, be in accord with the regular trade practice of the dealer or the contract or agreement entered into in a particular case. The expression “the tax invoice or bill of sale issued in respect of the sales relating to such discount shows the amount allowed as such discount” is not happily worded. The words “in respect of the sales relating to such discount” cannot be construed to mean that the discount would be inadmissible as a deduction unless the tax invoice pertaining to the goods originally issued shows the discount. This is a matter of ascertainment. The assessee must establish from its accounts that the discount relates specifically to the sales with reference to which it is allowed. In the first part of the proviso, Rule 3(2)(c) recognizes trade practice or, as the case may be, the contact or agreement of the dealer. The latter part which provides a methodology for ascertainment does not override the earlier part. Both must be construed together. Above all, it must be remembered that taxable turnover is turnover net of deductions. All trade discounts are allowable as permissible deductions. | 1[ds]12. The liability to pay tax is on the taxable turnover. Taxable turnover is arrived at after making permissible deductions from the total turnover. Among them areamounts allowed asSuch a discount must, however, be in accord with the regular trade practice of the dealer or the contract or agreement entered into in a particular case. The expressiontax invoice or bill of sale issued in respect of the sales relating to such discount shows the amount allowed as suchis not happily worded. The wordsrespect of the sales relating to suchcannot be construed to mean that the discount would be inadmissible as a deduction unless the tax invoice pertaining to the goods originally issued shows the discount. This is a matter of ascertainment. The assessee must establish from its accounts that the discount relates specifically to the sales with reference to which it is allowed. In the first part of the proviso, Rule 3(2)(c) recognizes trade practice or, as the case may be, the contact or agreement of the dealer. The latter part which provides a methodology for ascertainment does not override the earlier part. Both must be construed together. Above all, it must be remembered that taxable turnover is turnover net of deductions. All trade discounts are allowable as permissible deductions.In Southern Motors v State of Karnataka (2017) 3 SCC 467 ), a Bench of two learned judges of this Court considered the provisions of Rule 3(2)(c) of the Rules. In that case, the appellant who was a registered dealer with a business in motor vehicles issued tax invoices to its purchasers. After the sales were completed, credit notes were issued to the customers granting them discounts. As a result, the appellant retained only the net amount of the invoice less the discount reflected in the credit notes. During the course of the assessment, the appellant was subjected to orders of rectification, disallowing the deduction ofdiscounts. This Court heldIt is a matter of common experience that in the present contemporary competitive market, trade discounts not only are dependent on variable factors but also might be strategically not disclosable at the time of the original sale/purchase so as to be coevally reflected in the tax invoice or the bill of sale, as the case may be. The actual quantification of the trade discount, depending on the nature of the trade and the related stipulations in any contract with regard thereto, may be deferred till the happening of a contemplated event, so much so that the benefit thereof is extended at a point of time subsequent to that of the original sale/purchase. That by itself, subject to proof of such regular trade practice and the contract/agreement entered into between the parties, would not render the trade discount otherwise legal and acceptable, either non est or fictitious for evading tax liability. In the above factual premise, the interpretation as sought to be provided by the Revenue would evidently reduce Section 3(2)(c) to a dead letter, ineffective and unworkable and would defeat the objective of permitting deductions from the total turnover on account of trade(Id at pagesupplied)Relying on the earlier decisions of this Court, it was held that a trade discount ought not to be disallowed merely on the ground that it is not payable at the time of each invoice or deducted from the invoice price. In the of view of this Courtif taxable turnover is to be comprised of sale/purchase price, it is beyond ones comprehension as to why the trade discount should be disallowed, subject to the proof thereof, only because it was effectuated subsequent to the original sale but evidenced by contemporaneous documents and reflected in the relevantd at pageLegislature, the Court held, would not be unaware of the prevalent practice of offering trade discounts in commercial dispensations. In the view of theinsist on the quantification of trade discount for deduction at the time of sale itself, by incorporating the same in the tax invoice/bill of sale, would be to demand the impossible for all practical purposes and thus would be illogical, irrational andd at pageCourt accordingly read down the first proviso to Rule 3(2)(c) in the followingOn an overall review of the scheme of the Act and the Rules and the underlying objectives, in particular of Sections 29 and 30 of the Act and Rule 3 of the Rules, we are of the considered opinion that the requirement of reference of the discount in the tax invoice or bill of sale to qualify it for deduction has to be construed in relation to the transaction resulting in the final sale/purchase price and not limited to the original sale sans the trade discount. However, the transactions allowing discount have to be proved on the basis of contemporaneous records and the final sale price after deducting the trade discount must mandatorily be reflected in the accounts as stipulated under Rule 3(2)(c) of the Rules. The sale/purchase price has to be adjudged on a combined consideration of the tax invoice or bill of sale, as the case may be, along with the accounts reflecting the trade discount and the actual price paid. The first proviso has thus to be so read down, as above, to be in consonance with the true intendment of the legislature and to achieve as well the avowed objective of correct determination of the taxable turnover. The contrary interpretation accorded by the High Court being in defiance of logic and the established axioms of interpretation of statutes is thus unacceptable and isd at pageThis view was rendered by a bench of two learned Judges, including one of us (the learned Chief Justice). Having regard to the construction which has been placed on the provisions of Rule 3(2)(c) of the Rules in Southern Motors (supra), the judgment of the High Court in the present case is accordingly unsustainable. | 1 | 3,212 | 1,086 | ### 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:
Karnataka (2017) 3 SCC 467 ), a Bench of two learned judges of this Court considered the provisions of Rule 3(2)(c) of the Rules. In that case, the appellant who was a registered dealer with a business in motor vehicles issued tax invoices to its purchasers. After the sales were completed, credit notes were issued to the customers granting them discounts. As a result, the appellant retained only the net amount of the invoice less the discount reflected in the credit notes. During the course of the assessment, the appellant was subjected to orders of rectification, disallowing the deduction of post-sale discounts. This Court held thus:“28. It is a matter of common experience that in the present contemporary competitive market, trade discounts not only are dependent on variable factors but also might be strategically not disclosable at the time of the original sale/purchase so as to be coevally reflected in the tax invoice or the bill of sale, as the case may be. The actual quantification of the trade discount, depending on the nature of the trade and the related stipulations in any contract with regard thereto, may be deferred till the happening of a contemplated event, so much so that the benefit thereof is extended at a point of time subsequent to that of the original sale/purchase. That by itself, subject to proof of such regular trade practice and the contract/agreement entered into between the parties, would not render the trade discount otherwise legal and acceptable, either non est or fictitious for evading tax liability. In the above factual premise, the interpretation as sought to be provided by the Revenue would evidently reduce Section 3(2)(c) to a dead letter, ineffective and unworkable and would defeat the objective of permitting deductions from the total turnover on account of trade discount.” (Id at page 485)(emphasis supplied)Relying on the earlier decisions of this Court, it was held that a trade discount ought not to be disallowed merely on the ground that it is not payable at the time of each invoice or deducted from the invoice price. In the of view of this Court :“29…Perceptionally, if taxable turnover is to be comprised of sale/purchase price, it is beyond ones comprehension as to why the trade discount should be disallowed, subject to the proof thereof, only because it was effectuated subsequent to the original sale but evidenced by contemporaneous documents and reflected in the relevant accounts.” (Id at page 485)The Legislature, the Court held, would not be unaware of the prevalent practice of offering trade discounts in commercial dispensations. In the view of the Court:“38…To insist on the quantification of trade discount for deduction at the time of sale itself, by incorporating the same in the tax invoice/bill of sale, would be to demand the impossible for all practical purposes and thus would be illogical, irrational and absurd.” (Id at page 492)This Court accordingly read down the first proviso to Rule 3(2)(c) in the following manner:“40. On an overall review of the scheme of the Act and the Rules and the underlying objectives, in particular of Sections 29 and 30 of the Act and Rule 3 of the Rules, we are of the considered opinion that the requirement of reference of the discount in the tax invoice or bill of sale to qualify it for deduction has to be construed in relation to the transaction resulting in the final sale/purchase price and not limited to the original sale sans the trade discount. However, the transactions allowing discount have to be proved on the basis of contemporaneous records and the final sale price after deducting the trade discount must mandatorily be reflected in the accounts as stipulated under Rule 3(2)(c) of the Rules. The sale/purchase price has to be adjudged on a combined consideration of the tax invoice or bill of sale, as the case may be, along with the accounts reflecting the trade discount and the actual price paid. The first proviso has thus to be so read down, as above, to be in consonance with the true intendment of the legislature and to achieve as well the avowed objective of correct determination of the taxable turnover. The contrary interpretation accorded by the High Court being in defiance of logic and the established axioms of interpretation of statutes is thus unacceptable and is negated.” (Id at page 493)11. This view was rendered by a bench of two learned Judges, including one of us (the learned Chief Justice). Having regard to the construction which has been placed on the provisions of Rule 3(2)(c) of the Rules in Southern Motors (supra), the judgment of the High Court in the present case is accordingly unsustainable.12. The liability to pay tax is on the taxable turnover. Taxable turnover is arrived at after making permissible deductions from the total turnover. Among them are “all amounts allowed as discounts.” Such a discount must, however, be in accord with the regular trade practice of the dealer or the contract or agreement entered into in a particular case. The expression “the tax invoice or bill of sale issued in respect of the sales relating to such discount shows the amount allowed as such discount” is not happily worded. The words “in respect of the sales relating to such discount” cannot be construed to mean that the discount would be inadmissible as a deduction unless the tax invoice pertaining to the goods originally issued shows the discount. This is a matter of ascertainment. The assessee must establish from its accounts that the discount relates specifically to the sales with reference to which it is allowed. In the first part of the proviso, Rule 3(2)(c) recognizes trade practice or, as the case may be, the contact or agreement of the dealer. The latter part which provides a methodology for ascertainment does not override the earlier part. Both must be construed together. Above all, it must be remembered that taxable turnover is turnover net of deductions. All trade discounts are allowable as permissible deductions.
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12. The liability to pay tax is on the taxable turnover. Taxable turnover is arrived at after making permissible deductions from the total turnover. Among them areamounts allowed asSuch a discount must, however, be in accord with the regular trade practice of the dealer or the contract or agreement entered into in a particular case. The expressiontax invoice or bill of sale issued in respect of the sales relating to such discount shows the amount allowed as suchis not happily worded. The wordsrespect of the sales relating to suchcannot be construed to mean that the discount would be inadmissible as a deduction unless the tax invoice pertaining to the goods originally issued shows the discount. This is a matter of ascertainment. The assessee must establish from its accounts that the discount relates specifically to the sales with reference to which it is allowed. In the first part of the proviso, Rule 3(2)(c) recognizes trade practice or, as the case may be, the contact or agreement of the dealer. The latter part which provides a methodology for ascertainment does not override the earlier part. Both must be construed together. Above all, it must be remembered that taxable turnover is turnover net of deductions. All trade discounts are allowable as permissible deductions.In Southern Motors v State of Karnataka (2017) 3 SCC 467 ), a Bench of two learned judges of this Court considered the provisions of Rule 3(2)(c) of the Rules. In that case, the appellant who was a registered dealer with a business in motor vehicles issued tax invoices to its purchasers. After the sales were completed, credit notes were issued to the customers granting them discounts. As a result, the appellant retained only the net amount of the invoice less the discount reflected in the credit notes. During the course of the assessment, the appellant was subjected to orders of rectification, disallowing the deduction ofdiscounts. This Court heldIt is a matter of common experience that in the present contemporary competitive market, trade discounts not only are dependent on variable factors but also might be strategically not disclosable at the time of the original sale/purchase so as to be coevally reflected in the tax invoice or the bill of sale, as the case may be. The actual quantification of the trade discount, depending on the nature of the trade and the related stipulations in any contract with regard thereto, may be deferred till the happening of a contemplated event, so much so that the benefit thereof is extended at a point of time subsequent to that of the original sale/purchase. That by itself, subject to proof of such regular trade practice and the contract/agreement entered into between the parties, would not render the trade discount otherwise legal and acceptable, either non est or fictitious for evading tax liability. In the above factual premise, the interpretation as sought to be provided by the Revenue would evidently reduce Section 3(2)(c) to a dead letter, ineffective and unworkable and would defeat the objective of permitting deductions from the total turnover on account of trade(Id at pagesupplied)Relying on the earlier decisions of this Court, it was held that a trade discount ought not to be disallowed merely on the ground that it is not payable at the time of each invoice or deducted from the invoice price. In the of view of this Courtif taxable turnover is to be comprised of sale/purchase price, it is beyond ones comprehension as to why the trade discount should be disallowed, subject to the proof thereof, only because it was effectuated subsequent to the original sale but evidenced by contemporaneous documents and reflected in the relevantd at pageLegislature, the Court held, would not be unaware of the prevalent practice of offering trade discounts in commercial dispensations. In the view of theinsist on the quantification of trade discount for deduction at the time of sale itself, by incorporating the same in the tax invoice/bill of sale, would be to demand the impossible for all practical purposes and thus would be illogical, irrational andd at pageCourt accordingly read down the first proviso to Rule 3(2)(c) in the followingOn an overall review of the scheme of the Act and the Rules and the underlying objectives, in particular of Sections 29 and 30 of the Act and Rule 3 of the Rules, we are of the considered opinion that the requirement of reference of the discount in the tax invoice or bill of sale to qualify it for deduction has to be construed in relation to the transaction resulting in the final sale/purchase price and not limited to the original sale sans the trade discount. However, the transactions allowing discount have to be proved on the basis of contemporaneous records and the final sale price after deducting the trade discount must mandatorily be reflected in the accounts as stipulated under Rule 3(2)(c) of the Rules. The sale/purchase price has to be adjudged on a combined consideration of the tax invoice or bill of sale, as the case may be, along with the accounts reflecting the trade discount and the actual price paid. The first proviso has thus to be so read down, as above, to be in consonance with the true intendment of the legislature and to achieve as well the avowed objective of correct determination of the taxable turnover. The contrary interpretation accorded by the High Court being in defiance of logic and the established axioms of interpretation of statutes is thus unacceptable and isd at pageThis view was rendered by a bench of two learned Judges, including one of us (the learned Chief Justice). Having regard to the construction which has been placed on the provisions of Rule 3(2)(c) of the Rules in Southern Motors (supra), the judgment of the High Court in the present case is accordingly unsustainable.
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COLONEL SHRAWAN KUMAR JAIPURIYAR @ SARWAN KUMAR JAIPURIYAR Vs. KRISHNA NANDAN SINGH AND ANOTHER | Leave granted. 2. In spite of second call, there is no appearance on behalf of Krishna Nandan Singh, the plaintiff, the first respondent before us. 3. The first respondent has filed a civil suit T.S. No. 97/16 against Sarwan Kumar Jaipuriyar, the appellant before us and Anil Kumar, the second respondent before us. The second respondent is the brother of the first respondent. 4. The plaint admits that there was amicable division and partition of property bearing Holding no. 163 old Holding no. 42, Ward No. 10 (New) 7 (Old), Mahal No.1, Mohalla- Mainpura, P.S. Danapur, Patna amongst respondent no.1, respondent no.2 and their brother Sunil Kumar Mehta. This partition was evidenced by recording Memorandum of Partition dated 04.12.2008, which was signed and executed by the three brothers. 5. The factum of partition and the partition deed itself is not challenged and questioned in the civil suit preferred by the first respondent. In fact, Sunil Kumar Mehta, the third brother is not even a party to the suit. The suit also acknowledges that the second respondent was allotted and became the owner of south-eastern part of the aforesaid holding whereas the first respondent stands recorded as the owner of another portion and that the first respondent and second respondent have been paying taxes for the respective portions to Nagar Parishad under receipts. 6. The grievance and the cause of action as pleaded in the civil suit by the first respondent is that the second respondent had sold the portion allotted to him on partition to the appellant vide registered sale deed dated 25.01.2016. This sale deed, it is claimed, is void abilities and inoperative as there is every chance that the privacy of the first respondents family would be affected and destroyed. It is pleaded that the first respondent has got a right and authority to repurchase the portion allotted to the second respondent under the partition evidenced by the Memorandum of Partition dated 04.12.2008. 7. The Memorandum of Partition dated 04.12.2008 which is placed on record and an accepted/admitted document does not give any right of pre-emption to the first respondent. There is also no pleading to the said effect in the plaint. As the partition and the Memorandum of Partition are not denied or challenged, ownership of the second respondent and his right to sell the property in terms of the Memorandum of Partition are and would be undisputed legal rights under the Transfer of Property Act, 1882. There was no restraint to exercise of this right vested with the second respondent by contract or under any statute. This is not alleged and adverted to in the plaint. It is also an undisputed position that Sunil Kumar Mehta who was on partition allotted the third portion of the property, has sold and transferred his portion to a third party vide registered sale deed dated 15.10.2009. The said sale deed is not under challenge and was not questioned by the first respondent. 8. The aforesaid factual and legal position being admitted and accepted in the plaint, we fail to understand how and on what basis, the first respondent claims right of pre-emption or repurchase of the portion that was allotted to the second respondent in terms of amicable division as evidenced by Memorandum of Partition dated 04.12.2008. On the aforesaid partition, the second respondent became the sole and exclusive owner of the portion allotted to him, a legal position, which is not even controverter and denied by the first respondent in the plaint. 9. In the aforesaid background, it is to be held that the plaint does not disclose any cause of action for the relief prayed, that is, a direction to the second respondent to execute and register a sale deed in favour of the first respondent and to put the first respondent in possession. There does not exist any legal right which the plaintiff or the first respondent is entitled to invoke and enforce. For a right to exist, there must be a correlative duty which can be enforced in a law suit. A right cannot exist without an enforceable duty. Ownership means a bundle of rights which would normally include the right to exclude and transfer the property in a manner one wants, subject to contractual obligations as agreed or statutory restrictions imposed on the owner. In the present case, the pleadings fail to establish violation of a statutory right or breach of a contractual obligation which creates an enforceable right in the court of law. In the absence of any such right or even a claim, the plaint would not disclose cause of action. 10. This Court in Church of Christ Charitable Trust and Educational Society Represented by its Chairman v. Ponniamman Educational Trust Represented by its Chairman/Managing Trustee, (2012) 8 SCC 706 has referred to the earlier judgment of this Court in A.B.C. Laminart Pvt. Ltd. and Another vs. A.P. Agencies, Salem, (1989) 2 SCC 163 to explain that the cause of action means every fact which, if traversed, would be necessary for the plaintiff to prove in order to seek a decree and relief against the defendant. Cause of action requires infringement of the right or breach of an obligation and comprises of all material facts on which the right and claim for breach is founded, that is, some act done by the defendant to infringe and violate the right or breach an obligation. In T. Arivandanam vs. T.V. Satyapal and Another (1977) 4 SCC 467 this Court has held that if the plaint is manifestly vexatious, merit less and groundless, in the sense that it does not disclose a clear right to sue, it would be right and proper to exercise power under Order VII Rule 11 of the Code of Civil Procedure, 1908 (Code, for short). A mere contemplation or possibility that a right may be infringed without any legitimate basis for that right, would not be sufficient to hold that the plaint discloses a cause of action. | 1[ds]5. The factum of partition and the partition deed itself is not challenged and questioned in the civil suit preferred by the first respondent. In fact, Sunil Kumar Mehta, the third brother is not even a party to the suit. The suit also acknowledges that the second respondent was allotted and became the owner of south-eastern part of the aforesaid holding whereas the first respondent stands recorded as the owner of another portion and that the first respondent and second respondent have been paying taxes for the respective portions to Nagar Parishad under receipts.7. The Memorandum of Partition dated 04.12.2008 which is placed on record and an accepted/admitted document does not give any right of pre-emption to the first respondent. There is also no pleading to the said effect in the plaint. As the partition and the Memorandum of Partition are not denied or challenged, ownership of the second respondent and his right to sell the property in terms of the Memorandum of Partition are and would be undisputed legal rights under the Transfer of Property Act, 1882. There was no restraint to exercise of this right vested with the second respondent by contract or under any statute. This is not alleged and adverted to in the plaint. It is also an undisputed position that Sunil Kumar Mehta who was on partition allotted the third portion of the property, has sold and transferred his portion to a third party vide registered sale deed dated 15.10.2009. The said sale deed is not under challenge and was not questioned by the first respondent.8. The aforesaid factual and legal position being admitted and accepted in the plaint, we fail to understand how and on what basis, the first respondent claims right of pre-emption or repurchase of the portion that was allotted to the second respondent in terms of amicable division as evidenced by Memorandum of Partition dated 04.12.2008. On the aforesaid partition, the second respondent became the sole and exclusive owner of the portion allotted to him, a legal position, which is not even controverter and denied by the first respondent in the plaint.9. In the aforesaid background, it is to be held that the plaint does not disclose any cause of action for the relief prayed, that is, a direction to the second respondent to execute and register a sale deed in favour of the first respondent and to put the first respondent in possession. There does not exist any legal right which the plaintiff or the first respondent is entitled to invoke and enforce. For a right to exist, there must be a correlative duty which can be enforced in a law suit. A right cannot exist without an enforceable duty. Ownership means a bundle of rights which would normally include the right to exclude and transfer the property in a manner one wants, subject to contractual obligations as agreed or statutory restrictions imposed on the owner. In the present case, the pleadings fail to establish violation of a statutory right or breach of a contractual obligation which creates an enforceable right in the court of law. In the absence of any such right or even a claim, the plaint would not disclose cause of action.10. This Court in Church of Christ Charitable Trust and Educational Society Represented by its Chairman v. Ponniamman Educational Trust Represented by its Chairman/Managing Trustee, (2012) 8 SCC 706 has referred to the earlier judgment of this Court in A.B.C. Laminart Pvt. Ltd. and Another vs. A.P. Agencies, Salem, (1989) 2 SCC 163 to explain that the cause of action means every fact which, if traversed, would be necessary for the plaintiff to prove in order to seek a decree and relief against the defendant. Cause of action requires infringement of the right or breach of an obligation and comprises of all material facts on which the right and claim for breach is founded, that is, some act done by the defendant to infringe and violate the right or breach an obligation. In T. Arivandanam vs. T.V. Satyapal and Another (1977) 4 SCC 467 this Court has held that if the plaint is manifestly vexatious, merit less and groundless, in the sense that it does not disclose a clear right to sue, it would be right and proper to exercise power under Order VII Rule 11 of the Code of Civil Procedure, 1908 (Code, for short). A mere contemplation or possibility that a right may be infringed without any legitimate basis for that right, would not be sufficient to hold that the plaint discloses a cause of action. | 1 | 1,105 | 833 | ### 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:
Leave granted. 2. In spite of second call, there is no appearance on behalf of Krishna Nandan Singh, the plaintiff, the first respondent before us. 3. The first respondent has filed a civil suit T.S. No. 97/16 against Sarwan Kumar Jaipuriyar, the appellant before us and Anil Kumar, the second respondent before us. The second respondent is the brother of the first respondent. 4. The plaint admits that there was amicable division and partition of property bearing Holding no. 163 old Holding no. 42, Ward No. 10 (New) 7 (Old), Mahal No.1, Mohalla- Mainpura, P.S. Danapur, Patna amongst respondent no.1, respondent no.2 and their brother Sunil Kumar Mehta. This partition was evidenced by recording Memorandum of Partition dated 04.12.2008, which was signed and executed by the three brothers. 5. The factum of partition and the partition deed itself is not challenged and questioned in the civil suit preferred by the first respondent. In fact, Sunil Kumar Mehta, the third brother is not even a party to the suit. The suit also acknowledges that the second respondent was allotted and became the owner of south-eastern part of the aforesaid holding whereas the first respondent stands recorded as the owner of another portion and that the first respondent and second respondent have been paying taxes for the respective portions to Nagar Parishad under receipts. 6. The grievance and the cause of action as pleaded in the civil suit by the first respondent is that the second respondent had sold the portion allotted to him on partition to the appellant vide registered sale deed dated 25.01.2016. This sale deed, it is claimed, is void abilities and inoperative as there is every chance that the privacy of the first respondents family would be affected and destroyed. It is pleaded that the first respondent has got a right and authority to repurchase the portion allotted to the second respondent under the partition evidenced by the Memorandum of Partition dated 04.12.2008. 7. The Memorandum of Partition dated 04.12.2008 which is placed on record and an accepted/admitted document does not give any right of pre-emption to the first respondent. There is also no pleading to the said effect in the plaint. As the partition and the Memorandum of Partition are not denied or challenged, ownership of the second respondent and his right to sell the property in terms of the Memorandum of Partition are and would be undisputed legal rights under the Transfer of Property Act, 1882. There was no restraint to exercise of this right vested with the second respondent by contract or under any statute. This is not alleged and adverted to in the plaint. It is also an undisputed position that Sunil Kumar Mehta who was on partition allotted the third portion of the property, has sold and transferred his portion to a third party vide registered sale deed dated 15.10.2009. The said sale deed is not under challenge and was not questioned by the first respondent. 8. The aforesaid factual and legal position being admitted and accepted in the plaint, we fail to understand how and on what basis, the first respondent claims right of pre-emption or repurchase of the portion that was allotted to the second respondent in terms of amicable division as evidenced by Memorandum of Partition dated 04.12.2008. On the aforesaid partition, the second respondent became the sole and exclusive owner of the portion allotted to him, a legal position, which is not even controverter and denied by the first respondent in the plaint. 9. In the aforesaid background, it is to be held that the plaint does not disclose any cause of action for the relief prayed, that is, a direction to the second respondent to execute and register a sale deed in favour of the first respondent and to put the first respondent in possession. There does not exist any legal right which the plaintiff or the first respondent is entitled to invoke and enforce. For a right to exist, there must be a correlative duty which can be enforced in a law suit. A right cannot exist without an enforceable duty. Ownership means a bundle of rights which would normally include the right to exclude and transfer the property in a manner one wants, subject to contractual obligations as agreed or statutory restrictions imposed on the owner. In the present case, the pleadings fail to establish violation of a statutory right or breach of a contractual obligation which creates an enforceable right in the court of law. In the absence of any such right or even a claim, the plaint would not disclose cause of action. 10. This Court in Church of Christ Charitable Trust and Educational Society Represented by its Chairman v. Ponniamman Educational Trust Represented by its Chairman/Managing Trustee, (2012) 8 SCC 706 has referred to the earlier judgment of this Court in A.B.C. Laminart Pvt. Ltd. and Another vs. A.P. Agencies, Salem, (1989) 2 SCC 163 to explain that the cause of action means every fact which, if traversed, would be necessary for the plaintiff to prove in order to seek a decree and relief against the defendant. Cause of action requires infringement of the right or breach of an obligation and comprises of all material facts on which the right and claim for breach is founded, that is, some act done by the defendant to infringe and violate the right or breach an obligation. In T. Arivandanam vs. T.V. Satyapal and Another (1977) 4 SCC 467 this Court has held that if the plaint is manifestly vexatious, merit less and groundless, in the sense that it does not disclose a clear right to sue, it would be right and proper to exercise power under Order VII Rule 11 of the Code of Civil Procedure, 1908 (Code, for short). A mere contemplation or possibility that a right may be infringed without any legitimate basis for that right, would not be sufficient to hold that the plaint discloses a cause of action.
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1
### Explanation:
5. The factum of partition and the partition deed itself is not challenged and questioned in the civil suit preferred by the first respondent. In fact, Sunil Kumar Mehta, the third brother is not even a party to the suit. The suit also acknowledges that the second respondent was allotted and became the owner of south-eastern part of the aforesaid holding whereas the first respondent stands recorded as the owner of another portion and that the first respondent and second respondent have been paying taxes for the respective portions to Nagar Parishad under receipts.7. The Memorandum of Partition dated 04.12.2008 which is placed on record and an accepted/admitted document does not give any right of pre-emption to the first respondent. There is also no pleading to the said effect in the plaint. As the partition and the Memorandum of Partition are not denied or challenged, ownership of the second respondent and his right to sell the property in terms of the Memorandum of Partition are and would be undisputed legal rights under the Transfer of Property Act, 1882. There was no restraint to exercise of this right vested with the second respondent by contract or under any statute. This is not alleged and adverted to in the plaint. It is also an undisputed position that Sunil Kumar Mehta who was on partition allotted the third portion of the property, has sold and transferred his portion to a third party vide registered sale deed dated 15.10.2009. The said sale deed is not under challenge and was not questioned by the first respondent.8. The aforesaid factual and legal position being admitted and accepted in the plaint, we fail to understand how and on what basis, the first respondent claims right of pre-emption or repurchase of the portion that was allotted to the second respondent in terms of amicable division as evidenced by Memorandum of Partition dated 04.12.2008. On the aforesaid partition, the second respondent became the sole and exclusive owner of the portion allotted to him, a legal position, which is not even controverter and denied by the first respondent in the plaint.9. In the aforesaid background, it is to be held that the plaint does not disclose any cause of action for the relief prayed, that is, a direction to the second respondent to execute and register a sale deed in favour of the first respondent and to put the first respondent in possession. There does not exist any legal right which the plaintiff or the first respondent is entitled to invoke and enforce. For a right to exist, there must be a correlative duty which can be enforced in a law suit. A right cannot exist without an enforceable duty. Ownership means a bundle of rights which would normally include the right to exclude and transfer the property in a manner one wants, subject to contractual obligations as agreed or statutory restrictions imposed on the owner. In the present case, the pleadings fail to establish violation of a statutory right or breach of a contractual obligation which creates an enforceable right in the court of law. In the absence of any such right or even a claim, the plaint would not disclose cause of action.10. This Court in Church of Christ Charitable Trust and Educational Society Represented by its Chairman v. Ponniamman Educational Trust Represented by its Chairman/Managing Trustee, (2012) 8 SCC 706 has referred to the earlier judgment of this Court in A.B.C. Laminart Pvt. Ltd. and Another vs. A.P. Agencies, Salem, (1989) 2 SCC 163 to explain that the cause of action means every fact which, if traversed, would be necessary for the plaintiff to prove in order to seek a decree and relief against the defendant. Cause of action requires infringement of the right or breach of an obligation and comprises of all material facts on which the right and claim for breach is founded, that is, some act done by the defendant to infringe and violate the right or breach an obligation. In T. Arivandanam vs. T.V. Satyapal and Another (1977) 4 SCC 467 this Court has held that if the plaint is manifestly vexatious, merit less and groundless, in the sense that it does not disclose a clear right to sue, it would be right and proper to exercise power under Order VII Rule 11 of the Code of Civil Procedure, 1908 (Code, for short). A mere contemplation or possibility that a right may be infringed without any legitimate basis for that right, would not be sufficient to hold that the plaint discloses a cause of action.
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Tata Power Company Limited Vs. Reliance Energy Limited & Others | 1921 licences. Although, Mr. Venugopal tried to convince us that the changes effected in clause 6 of the 1907 licence and clause 5 of the remaining three licences held by TPC was only to compensate TPC for giving up its rights to supply in favour of the Maharashtra State Electricity Board and to help it to utilise its surplus generation of power, we are unable to accept Mr. Venugopals contentions, since from the materials on record it stands amply proved that Tata Power had all along been supplying electrical energy directly even to retail customers whose maximum demand was less than 1000 KVA and no objection thereof was raised by either BSES or REL till the year 1998 when Tata Power submitted its proposal for domestic tariff for approval to the Board. It was only thereafter that REL raised its objection in the form of its petition to MERC under Section 22(2)(e) and (n) of the ERC Act 1998. The list of consumers to whom retail supply was being effected by TPC in the island city of Bombay and its suburbs, discloses that at least 51 such consumers were within RELs area of supply. In fact, Mr. Venugopal by way of an alternative submission also indicated that Tata Power under the terms and conditions of the licences held by it, could supply energy to any consumer whose demand was above 1000 KVA within the area of supply covered by the said licences.74. We are also unable to accept Mr. Venugopals interpretation of clause 6 of the 1907 licences and clause 5 of the other licences to the effect that Sub-clause (II) thereof would be rendered tautologous, if the same was read independently of Sub-clause (I). His submission that if Sub-clause (II) is to be read in a manner which allowed Tata Power to supply energy for general purposes to all consumers, no restrictions would have been placed on the supply of power to factories and the Railways, appears to us to be without substance.Clause 5 of the 1919, 1921 and 1953 Licences held by Tata Power indicates the purpose of supply and is divided into two parts - (i) for power and(ii) for lighting and general purposes, other than power. Simply stated, Sub-clause (I) deals with supply to licensees for their own purposes and in bulk. The restriction indicated by Mr. Venugopal is in respect of such bulk supply where the consumer required less than 5,00,000 units per annum which was also stipulated to be the bona fide average computed annual consumption of a Factory or Railway. On the other hand, Sub-clause (II) provides for supply of electricity for lighting and general purposes, other than power, including the supply of energy in bulk to other licensees for distribution by them. Sub-clause (II) is followed by an Explanation to both Sub-clause (I) and Sub-clause (II) of Clause 5. It has been clarified that the energy supply to any consumer for power, that is under Sub-clause (I), could be used by such consumer for lighting his premises to a maximum amount of 20% of the total energy supplied to such consumer, and it has also been stipulated that Tata Power would not supply energy for lighting purposes referred to in Sub-clause (II) except by agreement with Bombay Electric Supply and Tramways Company Limited.75. Regarding Mr. Venugopals other submission relating to Section 42 of the 2003 Act, we are unable to appreciate how the same is relevant for interpreting the provisions of the licences held by TPC. It is no doubt true that Section 42 empowers the State Commission to introduce a system of open access within one year of the appointed date fixed by it and in specifying the extent of open access in successive phases and in determining the charges for wheeling having due regard to the relevant factors, but the introduction of the very concept of wheeling is against Mr. Venugopals submission that not having a distribution line in place, disentitles T.P.C. to supply electricity in retail directly to consumers even if their maximum demand was below 1000 KVA. The concept of wheeling has been introduced in the 2003 Act to enable distribution licensees who are yet to instal their distribution line to supply electricity directly to retail consumers, subject to payment of surcharge in addition to the charges for wheeling as the State Commission may determine. We, therefore, see no substance in the said submissions advanced by Mr. Venugopal.76. Mr. Venugopals last submission relating to market domination has to be considered by the appropriate Commission separately in terms of Section 60 of the 2003 Act and cannot be pressed into service for interpreting the terms and conditions of the licences held by TPC. On the other hand, in our view, the provisions of both the 1903 and 1910 Electricity Acts encourage competition in the electricity trade and the same is also incorporated in the licences issued in favour of the distribution licensees, which also include licencees generating power for supply. The element of competition has been included in the Preamble to the 2003 Act and permeates the same in its various provisions. As submitted by Mr. Chagla, the Act is meant to be consumer-friendly and one of the objectives it sets out to achieve is to give the consumer an option to choose the distribution licensee from whom it wishes to receive supply of electrical energy. The intervention of MIDC, Marol Industries Association and the appeals filed by it, has obviously been made in that context.77. Having regard to the above and the terms and conditions of the licences held by Tata Power, we have no hesitation in holding that the Appellate Tribunal for Electricity erred in coming to a finding that under its licences Tata Power was entitled to supply energy only in bulk and not for general purposes and in retail to all consumers, irrespective of their demand, except for those consumers indicated in Sub-clause (I) of clause 5 of the several licenses held by Tata Power. | 1[ds]While MERC answered the said question in favour of Tata Power upon holding that there was nothing in the licences granted to Tata Power to prevent it from doing so and that it could effect supply of electricity to any consumer, it also held that the terms and conditions in the said licences gave it an advantage over BSES in regard to fixation and charge of tariff which necessitated the establishment of a level playing field in order to encourage competition. Apparently, while dealing with the grievances projected by BSES, MERC lost sight of the reliefs prayed for BSES which was based on the contention that according to the terms and conditions of the licences granted to it Tata Power was not entitled to supply energy in retail to domestic customers, at least not to consumers whose demand was less than a maximum demand of 1000 KVA. Having once held on the principal issue that Tata Power was entitled to supply electrical energy to all consumers under the licences granted to it, MERC should have restrained itself from unilaterally making out a third case regarding the establishment of a level playing field when such a case had neither been made out nor any relief in that regard had been prayed for by BSES.72. MERC also appears to have lost sight of the fact that the first three licences had been granted to Tata Power long before a separate licence was granted in favour of BSES. There is sufficient material on record to establish that Tata Power had been supplying energy to domestic consumers on retail basis within areas which subsequently came to be included in BSES (and subsequently RELs) area of supply and no objection was raised in that regard till TPC submitted its proposed tariff for domestic retail consumers for approval in September, 1998. MERC appears to have confused the two issues while dealing with BSES petition under section 22(2)(e) and (n) of the Electricity Regulatory Commissions Act, 1998. In fact, it appears that based on the third case made out by it, MERC restrained Tata Power from supplying electrical energy to consumers whose demand was less than 1000 KVA (maximum demand) despite holding that under the licences granted to it Tata Power was entitled to do so.73. In dealing with the appeals filed both by REL and Tata Power, the Appellate Tribunal for Electricity misinterpreted the provisions of the licences granted to TPC for supply and distribution of electrical energy. The arguments advanced on behalf of REL before the learned Tribunal, which were also advanced before us by Mr. Venugopal, found favour with the Tribunal which arrived at the conclusion that the terms and conditions of the licences granted to TPC did not entitle it to supply electrical energy directly to consumers whose demand was below 1000 KVA (maximum). In reaching such conclusion the Tribunal not only ignored the situation prior to 1926 when BSES was granted its licence, but also the subsequent amendments to the licences held by TPC whereby clause 5 of the 1919 and 1921 licences were altered to permit Tata Power to supply electrical energy for lighting and general purposes, other than power and including the supply of energy in bulk to other licensees for distribution by them. The Appellate Tribunal also overlooked the order passed by the Industries Energy and Labour Department of the Government of Maharashtra on 7.12.1978, whereby from 1.7.1980 Tata Power was required to transfer to the Maharashtra State Electricity Board its distribution rights under the 1907 licence and assets pertaining thereto as set out in part 2 of the Annexure to the said licence. The Tribunal also overlooked the fact that by virtue of the aforesaid arrangements, clause 6 of the 1907 licence relating to "purpose of supply" was also amended to bring it in parity with the amendments to the First Annexure to the 1919 and 1921 licences. Although, Mr. Venugopal tried to convince us that the changes effected in clause 6 of the 1907 licence and clause 5 of the remaining three licences held by TPC was only to compensate TPC for giving up its rights to supply in favour of the Maharashtra State Electricity Board and to help it to utilise its surplus generation of power, we are unable to accept Mr. Venugopals contentions, since from the materials on record it stands amply proved that Tata Power had all along been supplying electrical energy directly even to retail customers whose maximum demand was less than 1000 KVA and no objection thereof was raised by either BSES or REL till the year 1998 when Tata Power submitted its proposal for domestic tariff for approval to the Board. It was only thereafter that REL raised its objection in the form of its petition to MERC under Section 22(2)(e) and (n) of the ERC Act 1998. The list of consumers to whom retail supply was being effected by TPC in the island city of Bombay and its suburbs, discloses that at least 51 such consumers were within RELs area of supply. In fact, Mr. Venugopal by way of an alternative submission also indicated that Tata Power under the terms and conditions of the licences held by it, could supply energy to any consumer whose demand was above 1000 KVA within the area of supply covered by the said licences.74. We are also unable to accept Mr. Venugopals interpretation of clause 6 of the 1907 licences and clause 5 of the other licences to the effect that(II) thereof would be rendered tautologous, if the same was read independently of(I). His submission that if(II) is to be read in a manner which allowed Tata Power to supply energy for general purposes to all consumers, no restrictions would have been placed on the supply of power to factories and the Railways, appears to us to be without substance.Clause 5 of the 1919, 1921 and 1953 Licences held by Tata Power indicates the purpose of supply and is divided into twofor power and(ii) for lighting and general purposes, other than power. Simply stated,(I) deals with supply to licensees for their own purposes and in bulk. The restriction indicated by Mr. Venugopal is in respect of such bulk supply where the consumer required less than 5,00,000 units per annum which was also stipulated to be the bona fide average computed annual consumption of a Factory or Railway. On the other hand,(II) provides for supply of electricity for lighting and general purposes, other than power, including the supply of energy in bulk to other licensees for distribution by them.(II) is followed by an Explanation to bothuse (II) of Clause 5. It has been clarified that the energy supply to any consumer for power, that is under(I), could be used by such consumer for lighting his premises to a maximum amount of 20% of the total energy supplied to such consumer, and it has also been stipulated that Tata Power would not supply energy for lighting purposes referred to in(II) except by agreement with Bombay Electric Supply and Tramways Company Limited.75. Regarding Mr. Venugopals other submission relating to Section 42 of the 2003 Act, we are unable to appreciate how the same is relevant for interpreting the provisions of the licences held by TPC. It is no doubt true that Section 42 empowers the State Commission to introduce a system of open access within one year of the appointed date fixed by it and in specifying the extent of open access in successive phases and in determining the charges for wheeling having due regard to the relevant factors, but the introduction of the very concept of wheeling is against Mr. Venugopals submission that not having a distribution line in place, disentitles T.P.C. to supply electricity in retail directly to consumers even if their maximum demand was below 1000 KVA. The concept of wheeling has been introduced in the 2003 Act to enable distribution licensees who are yet to instal their distribution line to supply electricity directly to retail consumers, subject to payment of surcharge in addition to the charges for wheeling as the State Commission may determine. We, therefore, see no substance in the said submissions advanced by Mr. Venugopal.76. Mr. Venugopals last submission relating to market domination has to be considered by the appropriate Commission separately in terms of Section 60 of the 2003 Act and cannot be pressed into service for interpreting the terms and conditions of the licences held by TPC. On the other hand, in our view, the provisions of both the 1903 and 1910 Electricity Acts encourage competition in the electricity trade and the same is also incorporated in the licences issued in favour of the distribution licensees, which also include licencees generating power for supply. The element of competition has been included in the Preamble to the 2003 Act and permeates the same in its various provisions. As submitted by Mr. Chagla, the Act is meant to beand one of the objectives it sets out to achieve is to give the consumer an option to choose the distribution licensee from whom it wishes to receive supply of electrical energy. The intervention of MIDC, Marol Industries Association and the appeals filed by it, has obviously been made in that context.77. Having regard to the above and the terms and conditions of the licences held by Tata Power, we have no hesitation in holding that the Appellate Tribunal for Electricity erred in coming to a finding that under its licences Tata Power was entitled to supply energy only in bulk and not for general purposes and in retail to all consumers, irrespective of their demand, except for those consumers indicated in(I) of clause 5 of the several licenses held by Tata Power. | 1 | 11,962 | 1,765 | ### 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:
1921 licences. Although, Mr. Venugopal tried to convince us that the changes effected in clause 6 of the 1907 licence and clause 5 of the remaining three licences held by TPC was only to compensate TPC for giving up its rights to supply in favour of the Maharashtra State Electricity Board and to help it to utilise its surplus generation of power, we are unable to accept Mr. Venugopals contentions, since from the materials on record it stands amply proved that Tata Power had all along been supplying electrical energy directly even to retail customers whose maximum demand was less than 1000 KVA and no objection thereof was raised by either BSES or REL till the year 1998 when Tata Power submitted its proposal for domestic tariff for approval to the Board. It was only thereafter that REL raised its objection in the form of its petition to MERC under Section 22(2)(e) and (n) of the ERC Act 1998. The list of consumers to whom retail supply was being effected by TPC in the island city of Bombay and its suburbs, discloses that at least 51 such consumers were within RELs area of supply. In fact, Mr. Venugopal by way of an alternative submission also indicated that Tata Power under the terms and conditions of the licences held by it, could supply energy to any consumer whose demand was above 1000 KVA within the area of supply covered by the said licences.74. We are also unable to accept Mr. Venugopals interpretation of clause 6 of the 1907 licences and clause 5 of the other licences to the effect that Sub-clause (II) thereof would be rendered tautologous, if the same was read independently of Sub-clause (I). His submission that if Sub-clause (II) is to be read in a manner which allowed Tata Power to supply energy for general purposes to all consumers, no restrictions would have been placed on the supply of power to factories and the Railways, appears to us to be without substance.Clause 5 of the 1919, 1921 and 1953 Licences held by Tata Power indicates the purpose of supply and is divided into two parts - (i) for power and(ii) for lighting and general purposes, other than power. Simply stated, Sub-clause (I) deals with supply to licensees for their own purposes and in bulk. The restriction indicated by Mr. Venugopal is in respect of such bulk supply where the consumer required less than 5,00,000 units per annum which was also stipulated to be the bona fide average computed annual consumption of a Factory or Railway. On the other hand, Sub-clause (II) provides for supply of electricity for lighting and general purposes, other than power, including the supply of energy in bulk to other licensees for distribution by them. Sub-clause (II) is followed by an Explanation to both Sub-clause (I) and Sub-clause (II) of Clause 5. It has been clarified that the energy supply to any consumer for power, that is under Sub-clause (I), could be used by such consumer for lighting his premises to a maximum amount of 20% of the total energy supplied to such consumer, and it has also been stipulated that Tata Power would not supply energy for lighting purposes referred to in Sub-clause (II) except by agreement with Bombay Electric Supply and Tramways Company Limited.75. Regarding Mr. Venugopals other submission relating to Section 42 of the 2003 Act, we are unable to appreciate how the same is relevant for interpreting the provisions of the licences held by TPC. It is no doubt true that Section 42 empowers the State Commission to introduce a system of open access within one year of the appointed date fixed by it and in specifying the extent of open access in successive phases and in determining the charges for wheeling having due regard to the relevant factors, but the introduction of the very concept of wheeling is against Mr. Venugopals submission that not having a distribution line in place, disentitles T.P.C. to supply electricity in retail directly to consumers even if their maximum demand was below 1000 KVA. The concept of wheeling has been introduced in the 2003 Act to enable distribution licensees who are yet to instal their distribution line to supply electricity directly to retail consumers, subject to payment of surcharge in addition to the charges for wheeling as the State Commission may determine. We, therefore, see no substance in the said submissions advanced by Mr. Venugopal.76. Mr. Venugopals last submission relating to market domination has to be considered by the appropriate Commission separately in terms of Section 60 of the 2003 Act and cannot be pressed into service for interpreting the terms and conditions of the licences held by TPC. On the other hand, in our view, the provisions of both the 1903 and 1910 Electricity Acts encourage competition in the electricity trade and the same is also incorporated in the licences issued in favour of the distribution licensees, which also include licencees generating power for supply. The element of competition has been included in the Preamble to the 2003 Act and permeates the same in its various provisions. As submitted by Mr. Chagla, the Act is meant to be consumer-friendly and one of the objectives it sets out to achieve is to give the consumer an option to choose the distribution licensee from whom it wishes to receive supply of electrical energy. The intervention of MIDC, Marol Industries Association and the appeals filed by it, has obviously been made in that context.77. Having regard to the above and the terms and conditions of the licences held by Tata Power, we have no hesitation in holding that the Appellate Tribunal for Electricity erred in coming to a finding that under its licences Tata Power was entitled to supply energy only in bulk and not for general purposes and in retail to all consumers, irrespective of their demand, except for those consumers indicated in Sub-clause (I) of clause 5 of the several licenses held by Tata Power.
### Response:
1
### Explanation:
of the 1907 licence relating to "purpose of supply" was also amended to bring it in parity with the amendments to the First Annexure to the 1919 and 1921 licences. Although, Mr. Venugopal tried to convince us that the changes effected in clause 6 of the 1907 licence and clause 5 of the remaining three licences held by TPC was only to compensate TPC for giving up its rights to supply in favour of the Maharashtra State Electricity Board and to help it to utilise its surplus generation of power, we are unable to accept Mr. Venugopals contentions, since from the materials on record it stands amply proved that Tata Power had all along been supplying electrical energy directly even to retail customers whose maximum demand was less than 1000 KVA and no objection thereof was raised by either BSES or REL till the year 1998 when Tata Power submitted its proposal for domestic tariff for approval to the Board. It was only thereafter that REL raised its objection in the form of its petition to MERC under Section 22(2)(e) and (n) of the ERC Act 1998. The list of consumers to whom retail supply was being effected by TPC in the island city of Bombay and its suburbs, discloses that at least 51 such consumers were within RELs area of supply. In fact, Mr. Venugopal by way of an alternative submission also indicated that Tata Power under the terms and conditions of the licences held by it, could supply energy to any consumer whose demand was above 1000 KVA within the area of supply covered by the said licences.74. We are also unable to accept Mr. Venugopals interpretation of clause 6 of the 1907 licences and clause 5 of the other licences to the effect that(II) thereof would be rendered tautologous, if the same was read independently of(I). His submission that if(II) is to be read in a manner which allowed Tata Power to supply energy for general purposes to all consumers, no restrictions would have been placed on the supply of power to factories and the Railways, appears to us to be without substance.Clause 5 of the 1919, 1921 and 1953 Licences held by Tata Power indicates the purpose of supply and is divided into twofor power and(ii) for lighting and general purposes, other than power. Simply stated,(I) deals with supply to licensees for their own purposes and in bulk. The restriction indicated by Mr. Venugopal is in respect of such bulk supply where the consumer required less than 5,00,000 units per annum which was also stipulated to be the bona fide average computed annual consumption of a Factory or Railway. On the other hand,(II) provides for supply of electricity for lighting and general purposes, other than power, including the supply of energy in bulk to other licensees for distribution by them.(II) is followed by an Explanation to bothuse (II) of Clause 5. It has been clarified that the energy supply to any consumer for power, that is under(I), could be used by such consumer for lighting his premises to a maximum amount of 20% of the total energy supplied to such consumer, and it has also been stipulated that Tata Power would not supply energy for lighting purposes referred to in(II) except by agreement with Bombay Electric Supply and Tramways Company Limited.75. Regarding Mr. Venugopals other submission relating to Section 42 of the 2003 Act, we are unable to appreciate how the same is relevant for interpreting the provisions of the licences held by TPC. It is no doubt true that Section 42 empowers the State Commission to introduce a system of open access within one year of the appointed date fixed by it and in specifying the extent of open access in successive phases and in determining the charges for wheeling having due regard to the relevant factors, but the introduction of the very concept of wheeling is against Mr. Venugopals submission that not having a distribution line in place, disentitles T.P.C. to supply electricity in retail directly to consumers even if their maximum demand was below 1000 KVA. The concept of wheeling has been introduced in the 2003 Act to enable distribution licensees who are yet to instal their distribution line to supply electricity directly to retail consumers, subject to payment of surcharge in addition to the charges for wheeling as the State Commission may determine. We, therefore, see no substance in the said submissions advanced by Mr. Venugopal.76. Mr. Venugopals last submission relating to market domination has to be considered by the appropriate Commission separately in terms of Section 60 of the 2003 Act and cannot be pressed into service for interpreting the terms and conditions of the licences held by TPC. On the other hand, in our view, the provisions of both the 1903 and 1910 Electricity Acts encourage competition in the electricity trade and the same is also incorporated in the licences issued in favour of the distribution licensees, which also include licencees generating power for supply. The element of competition has been included in the Preamble to the 2003 Act and permeates the same in its various provisions. As submitted by Mr. Chagla, the Act is meant to beand one of the objectives it sets out to achieve is to give the consumer an option to choose the distribution licensee from whom it wishes to receive supply of electrical energy. The intervention of MIDC, Marol Industries Association and the appeals filed by it, has obviously been made in that context.77. Having regard to the above and the terms and conditions of the licences held by Tata Power, we have no hesitation in holding that the Appellate Tribunal for Electricity erred in coming to a finding that under its licences Tata Power was entitled to supply energy only in bulk and not for general purposes and in retail to all consumers, irrespective of their demand, except for those consumers indicated in(I) of clause 5 of the several licenses held by Tata Power.
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Jacob Mathew Vs. State Of Punjab | the highest level of expertise or skills in that branch which he practises. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.(4) The test for determining medical negligence as laid down in Bolam’s case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.(6) The word ‘gross’ has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be ‘gross’. The expression ‘rash or negligent act’ as occurring in Section 304A of the IPC has to be read as qualified by the word ‘grossly’.(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence. 50. In view of the principles laid down hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr. Suresh Gupta’s case (2004) 6 SCC 422 and re-affirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh Gupta’s case. We may not be understood as having expressed any opinion on the question whether on the facts of that case the accused could or could not have been held guilty of criminal negligence as that question is not before us. We also approve of the passage from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Suresh Gupta’s case (noted vide para 27 of the report).Guidelines — re: prosecuting medical professionals51. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.52. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.53. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in Government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam’s test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld. | 0[ds]18. In our opinion, the factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree.The purpose of holding a professional liable for his act or omission, if negligent, is to make the life safer and to eliminate the possibility of recurrence of negligence in future. Human body and medical science both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.We sum up our conclusions asNegligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three:nd ‘resultingNegligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practises. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.(4) The test for determining medical negligence as laid down incase [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.(6) The wordhas not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to beThe expression ‘rash or negligentas occurring in Section 304A of the IPC has to be read as qualified by the wordTo prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.In view of the principles laid down hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr. Sureshcase (2004) 6 SCC 422 and re-affirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Sureshcase. We may not be understood as having expressed any opinion on the question whether on the facts of that case the accused could or could not have been held guilty of criminal negligence as that question is not before us. We also approve of the passage from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Sureshcase (noted vide para 27 of the report).Guidelines — re: prosecuting medical professionals51. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.52. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.53. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in Government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applyingtest to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld. | 0 | 13,209 | 1,713 | ### 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 highest level of expertise or skills in that branch which he practises. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.(4) The test for determining medical negligence as laid down in Bolam’s case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.(6) The word ‘gross’ has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be ‘gross’. The expression ‘rash or negligent act’ as occurring in Section 304A of the IPC has to be read as qualified by the word ‘grossly’.(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence. 50. In view of the principles laid down hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr. Suresh Gupta’s case (2004) 6 SCC 422 and re-affirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh Gupta’s case. We may not be understood as having expressed any opinion on the question whether on the facts of that case the accused could or could not have been held guilty of criminal negligence as that question is not before us. We also approve of the passage from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Suresh Gupta’s case (noted vide para 27 of the report).Guidelines — re: prosecuting medical professionals51. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.52. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.53. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in Government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam’s test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.
### Response:
0
### Explanation:
an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practises. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.(4) The test for determining medical negligence as laid down incase [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.(6) The wordhas not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to beThe expression ‘rash or negligentas occurring in Section 304A of the IPC has to be read as qualified by the wordTo prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.In view of the principles laid down hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr. Sureshcase (2004) 6 SCC 422 and re-affirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Sureshcase. We may not be understood as having expressed any opinion on the question whether on the facts of that case the accused could or could not have been held guilty of criminal negligence as that question is not before us. We also approve of the passage from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Sureshcase (noted vide para 27 of the report).Guidelines — re: prosecuting medical professionals51. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.52. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.53. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in Government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applyingtest to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.
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BHAGWAN DAS GOEL (DEAD) THROUGH HIS LRS. AND ORS Vs. PYARE KISHAN AGARWAL | Abhay Manohar Sapre, J.1. Leave granted.2. This appeal is directed against the final judgment and order dated 14.05.2012 passed by the High Court of Judicature at Allahabad in Writ C. No.14839/1993 whereby the High Court dismissed the writ petition filed by the appellants herein and upheld the order dated 18.03.1993 passed by the Civil Judge, Jhansi in O.S. No.140/1992.3. A few facts need mention hereinbelow for the disposal of this appeal, which involves a short point.4. The appellants are the legal representatives of the original defendants and the respondent herein is the plaintiff of the suit out of which this appeal arises.5. The respondent filed an application under Section 20 of the Arbitration Act, 1940 (since repealed) against the appellants’ predecessors¬in¬ title. The application was founded on the allegations inter alia that there was a partnership between the appellants’ predecessors¬in¬title with the respondent on 05.07.1960 by name "Gupta Bus Service".6. However, the disputes arose between the partners of this firm(Gupta Bus Service), which resulted in its dissolution. It was alleged that Clause 11 of the Partnership Deed provides for resolution of disputes arising out of the partnership between the parties by an Arbitrator. The respondent, therefore, prayed that an Arbitrator be appointed in terms of Clause 11 of the Partnership Deed for deciding the disputes, which have arisen between the parties relating to the partnership.7. The appellants (defendants) on being served raised a preliminary objection contending therein that since the partnership in question on which the application under Section 20 of the Partnership Act was founded was an unregistered partnership", therefore, in the light of the bar contained under Section 69 (3) of the Partnership Act, the application filed by the respondent was not maintainable, therefore, it was liable to be dismissed as such.8. The Civil Judge by order dated 18.03.1993 overruled the objection raised by the appellants (defendants) and held that the application filed by the respondent (plaintiff) is maintainable. The appellants (defendants) felt aggrieved and filed writ petition in the High Court at Allahabad under Article 227 of the Constitution of India.9. By impugned order, the High Court dismissed the writ petition and upheld the order of the Civil Judge, which has given rise to filing of this appeal by way of special leave by the defendants in this Court.10. So, the short question, which arises for consideration in this appeal, is whether the High Court was justified in dismissing the appellants’ writ petition.11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow this appeal and while setting aside the impugned order remand the case to the High Court for deciding the writ petition afresh on merits in the light of the observations made infra.12. In our considered view, the need to remand the case has occasioned because we find that the High Court did not decide the issue, which was the subject matter of the writ petition, keeping in view the law laid down by this Court in the case of Krishna Motor Service by its Partners vs. H.B. Vittala Kamath, 1996 (10) SCC 88. 13. In our view, the High Court should have noticed the aforementioned decision and decided the question accordingly in the light of law laid down therein. The High Court unfortunately did not take note of the said decision and has thus committed an error requiring interference of this Court.14. It is for this reason, we are of the considered view that the matter should be remitted to the High Court for deciding the writ petition afresh on merits keeping in view the law laid down by this Court in the case of Krishna Motor Service (supra). | 1[ds]12. In our considered view, the need to remand the case has occasioned because we find that the High Court did not decide the issue, which was the subject matter of the writ petition, keeping in view the law laid down by this Court in the case of Krishna Motor Service by its Partners vs. H.B. Vittala Kamath, 1996 (10) SCC 88. 13. In our view, the High Court should have noticed the aforementioned decision and decided the question accordingly in the light of law laid down therein. The High Court unfortunately did not take note of the said decision and has thus committed an error requiring interference of this Court.14. It is for this reason, we are of the considered view that the matter should be remitted to the High Court for deciding the writ petition afresh on merits keeping in view the law laid down by this Court in the case of Krishna Motor Service (supra). | 1 | 692 | 179 | ### 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:
Abhay Manohar Sapre, J.1. Leave granted.2. This appeal is directed against the final judgment and order dated 14.05.2012 passed by the High Court of Judicature at Allahabad in Writ C. No.14839/1993 whereby the High Court dismissed the writ petition filed by the appellants herein and upheld the order dated 18.03.1993 passed by the Civil Judge, Jhansi in O.S. No.140/1992.3. A few facts need mention hereinbelow for the disposal of this appeal, which involves a short point.4. The appellants are the legal representatives of the original defendants and the respondent herein is the plaintiff of the suit out of which this appeal arises.5. The respondent filed an application under Section 20 of the Arbitration Act, 1940 (since repealed) against the appellants’ predecessors¬in¬ title. The application was founded on the allegations inter alia that there was a partnership between the appellants’ predecessors¬in¬title with the respondent on 05.07.1960 by name "Gupta Bus Service".6. However, the disputes arose between the partners of this firm(Gupta Bus Service), which resulted in its dissolution. It was alleged that Clause 11 of the Partnership Deed provides for resolution of disputes arising out of the partnership between the parties by an Arbitrator. The respondent, therefore, prayed that an Arbitrator be appointed in terms of Clause 11 of the Partnership Deed for deciding the disputes, which have arisen between the parties relating to the partnership.7. The appellants (defendants) on being served raised a preliminary objection contending therein that since the partnership in question on which the application under Section 20 of the Partnership Act was founded was an unregistered partnership", therefore, in the light of the bar contained under Section 69 (3) of the Partnership Act, the application filed by the respondent was not maintainable, therefore, it was liable to be dismissed as such.8. The Civil Judge by order dated 18.03.1993 overruled the objection raised by the appellants (defendants) and held that the application filed by the respondent (plaintiff) is maintainable. The appellants (defendants) felt aggrieved and filed writ petition in the High Court at Allahabad under Article 227 of the Constitution of India.9. By impugned order, the High Court dismissed the writ petition and upheld the order of the Civil Judge, which has given rise to filing of this appeal by way of special leave by the defendants in this Court.10. So, the short question, which arises for consideration in this appeal, is whether the High Court was justified in dismissing the appellants’ writ petition.11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow this appeal and while setting aside the impugned order remand the case to the High Court for deciding the writ petition afresh on merits in the light of the observations made infra.12. In our considered view, the need to remand the case has occasioned because we find that the High Court did not decide the issue, which was the subject matter of the writ petition, keeping in view the law laid down by this Court in the case of Krishna Motor Service by its Partners vs. H.B. Vittala Kamath, 1996 (10) SCC 88. 13. In our view, the High Court should have noticed the aforementioned decision and decided the question accordingly in the light of law laid down therein. The High Court unfortunately did not take note of the said decision and has thus committed an error requiring interference of this Court.14. It is for this reason, we are of the considered view that the matter should be remitted to the High Court for deciding the writ petition afresh on merits keeping in view the law laid down by this Court in the case of Krishna Motor Service (supra).
### Response:
1
### Explanation:
12. In our considered view, the need to remand the case has occasioned because we find that the High Court did not decide the issue, which was the subject matter of the writ petition, keeping in view the law laid down by this Court in the case of Krishna Motor Service by its Partners vs. H.B. Vittala Kamath, 1996 (10) SCC 88. 13. In our view, the High Court should have noticed the aforementioned decision and decided the question accordingly in the light of law laid down therein. The High Court unfortunately did not take note of the said decision and has thus committed an error requiring interference of this Court.14. It is for this reason, we are of the considered view that the matter should be remitted to the High Court for deciding the writ petition afresh on merits keeping in view the law laid down by this Court in the case of Krishna Motor Service (supra).
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Bombay Labour Union Representing The Workmen Of Messrs Vs. Messrs International Franchises Pvt. Ltd | the department is concerned with packing labeling, putting in phials and other work of this kind which has to be done after the pharmaceutical product has been manufactured. Nor do we think that because the work has to be done as a team it cannot be done by married women. We also feel that there is nothing to show that married women would necessarily be more likely to be absent than unmarried women or widows. If it is the presence of children which may be said to account for greater absenteeism among married woman that would be so more or less in the case of widows with children also. The fact that the work has got to be done as a team and presence of all those workmen is necessary is in our opinion no disqualification so far as married women are concerned. It cannot be disputed that even unmarried women or widows are entitled to such leave as the respondents rules provide and they would be availing themselves of these leave facilities. The only difference in the matter of absenteeism that we can see between married women on the one hand and unmarried women and widows on the other is in the matter of maternity leave which is an extra facility available to married women. To this extent only, married women are more likely to be absent than unmarried women and widows. But such absence can in our opinion be easily provided for by having a few extra women as leave reserve and can thus hardly be a ground for such a drastic rule as the present which requires an unmarried woman to resign as soon as she marries. We have been unable to understand how it can be said that it is necessary in the interest of efficient operation and in the companys economic interest not to employ married women. So far as efficient operation is concerned it can hardly be said that married women would be less efficient than unmarried women or widows so far as pure efficiency in work is concerned, apart of course from the question of maternity leave. As to the economic interest of the concern we fail to see what difference the employment of married women will make in that connection for the emoluments whether of an unmarried woman or of a married woman are the same. The only difference between the two as we have already said is the burden on account of maternity leave. But as to that the respondent contends that the reason for having this rule is not the respondents desire to avoid the small burden to be placed on it on account of maternity leave. If that is so, we fail to see any justification for a rule of this kind which requires an unmarried woman to give up service immediately she marries. We are therefore of opinion that there is no good and convincing reason why such a rule should continue in one department of the pharmaceutical industry. The fact that such a rule exists in other such concerns is no justification, if the rule cannot be justified on its own merits.4. Then it is urged that the employer was free to impose any condition in the matter of employment when he employs a new workman and the industrial adjudication should not interfere with this right of the employer. All that need be said in this connection is that it is too late in the day now to stress the absolute freedom of an employer to impose any condition which he likes on labour. It is always open to industrial adjudication to consider the conditions of employment of labour and to vary them if it is found necessary, unless the employer can justify an extraordinary condition like this by reasons which carry conviction. In the present case the reasons which the respondent has advanced and which were the basis of the two decisions referred to earlier do not commend themselves to us as sufficient for such a rule. We are therefore of opinion that such a rule should be abrogated in the interest of social justice.5. Lastly it is urged that a similar rule exists in certain government services and in this connection our attention is drawn in particular to R. 5(3) of the 1954, Indian Administrative Service (Recruitment) Rules. That rule reads as follows:"No married woman shall be entitled as of right to be appointed to the Service, and where a woman appointed to the Service subsequently marries, the Central Government may, if the maintenance of the efficiency of the Service so requires, call upon her to resign."It will be seen that this rule for the Indian Administrative Service is not unqualified like the rule in force in the respondents concern. It only lays down that where an unmarried woman marries subsequently, the Central Government may, if the maintenance of the efficiency of the Service so requires call upon her to resign. Therefore this rule does not compel unmarried women to resign on marriage as a matter of course as is the case in the respondent-concern. It is only when the Central Government considers that marriage has impaired the efficiency of the woman concerned that the Central Government may call upon her to resign. The rule which is in force in the respondent concern however assumes that merely by marriage the efficiency of the woman employee is impaired and such an assumption in our opinion is not justified. At any rate this rule for the. Indian Administrative Service which has been brought to our notice only for purposes of comparison does not justify the drastic rule that we have in the in the present case where an unmarried woman is compelled to resign immediately she marries without regard to her continued efficiency.6. On a careful consideration of the reasons advanced on behalf on the respondent in support of the existing rule we are of opinion that the reasons do not justify such a drastic rule. W | 1[ds]2. Ordinarily we see no reason for such a rule requiring unmarried women to give up service on marriage, particularly when it is not disputed that no such rule exists in other industries. It is also not in dispute that no such rule exists in other departments of the respondent concern itself and it is only in one department that the rule is in force. It can only be upheld if the respondent shows that there are good and convincing reasons why in this particular department of the pharmaceutical industry it is necessary to have such a rule. The only reason given for enforcement of this rule in this department of the respondent - concern is that the workmen have to work in teams in this department and that requires that they should be regular and that this cannot be expected from married women for obvious reasons, and that there is greater absenteeism among married women than among unmarried women or widows against whom there is no bar of thiswill be seen that this rule for the Indian Administrative Service is not unqualified like the rule in force in the respondents concern. It only lays down that where an unmarried woman marries subsequently, the Central Government may, if the maintenance of the efficiency of the Service so requires call upon her to resign. Therefore this rule does not compel unmarried women to resign on marriage as a matter of course as is the case in the respondent-concern. It is only when the Central Government considers that marriage has impaired the efficiency of the woman concerned that the Central Government may call upon her to resign. The rule which is in force in the respondent concern however assumes that merely by marriage the efficiency of the woman employee is impaired and such an assumption in our opinion is not justified. At any rate this rule for the. Indian Administrative Service which has been brought to our notice only for purposes of comparison does not justify the drastic rule that we have in the in the present case where an unmarried woman is compelled to resign immediately she marries without regard to her continued efficiency.6. On a careful consideration of the reasons advanced on behalf on the respondent in support of the existing rule we are of opinion that the reasons do not justify such a drastic rule. We therefore allow the appeal and direct that the rule in question in the form in which it exists at present be abrogated. The abrogation shall take effect from the date of this judgment. The appellants will get their cost from the respondent company. | 1 | 1,578 | 464 | ### 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 department is concerned with packing labeling, putting in phials and other work of this kind which has to be done after the pharmaceutical product has been manufactured. Nor do we think that because the work has to be done as a team it cannot be done by married women. We also feel that there is nothing to show that married women would necessarily be more likely to be absent than unmarried women or widows. If it is the presence of children which may be said to account for greater absenteeism among married woman that would be so more or less in the case of widows with children also. The fact that the work has got to be done as a team and presence of all those workmen is necessary is in our opinion no disqualification so far as married women are concerned. It cannot be disputed that even unmarried women or widows are entitled to such leave as the respondents rules provide and they would be availing themselves of these leave facilities. The only difference in the matter of absenteeism that we can see between married women on the one hand and unmarried women and widows on the other is in the matter of maternity leave which is an extra facility available to married women. To this extent only, married women are more likely to be absent than unmarried women and widows. But such absence can in our opinion be easily provided for by having a few extra women as leave reserve and can thus hardly be a ground for such a drastic rule as the present which requires an unmarried woman to resign as soon as she marries. We have been unable to understand how it can be said that it is necessary in the interest of efficient operation and in the companys economic interest not to employ married women. So far as efficient operation is concerned it can hardly be said that married women would be less efficient than unmarried women or widows so far as pure efficiency in work is concerned, apart of course from the question of maternity leave. As to the economic interest of the concern we fail to see what difference the employment of married women will make in that connection for the emoluments whether of an unmarried woman or of a married woman are the same. The only difference between the two as we have already said is the burden on account of maternity leave. But as to that the respondent contends that the reason for having this rule is not the respondents desire to avoid the small burden to be placed on it on account of maternity leave. If that is so, we fail to see any justification for a rule of this kind which requires an unmarried woman to give up service immediately she marries. We are therefore of opinion that there is no good and convincing reason why such a rule should continue in one department of the pharmaceutical industry. The fact that such a rule exists in other such concerns is no justification, if the rule cannot be justified on its own merits.4. Then it is urged that the employer was free to impose any condition in the matter of employment when he employs a new workman and the industrial adjudication should not interfere with this right of the employer. All that need be said in this connection is that it is too late in the day now to stress the absolute freedom of an employer to impose any condition which he likes on labour. It is always open to industrial adjudication to consider the conditions of employment of labour and to vary them if it is found necessary, unless the employer can justify an extraordinary condition like this by reasons which carry conviction. In the present case the reasons which the respondent has advanced and which were the basis of the two decisions referred to earlier do not commend themselves to us as sufficient for such a rule. We are therefore of opinion that such a rule should be abrogated in the interest of social justice.5. Lastly it is urged that a similar rule exists in certain government services and in this connection our attention is drawn in particular to R. 5(3) of the 1954, Indian Administrative Service (Recruitment) Rules. That rule reads as follows:"No married woman shall be entitled as of right to be appointed to the Service, and where a woman appointed to the Service subsequently marries, the Central Government may, if the maintenance of the efficiency of the Service so requires, call upon her to resign."It will be seen that this rule for the Indian Administrative Service is not unqualified like the rule in force in the respondents concern. It only lays down that where an unmarried woman marries subsequently, the Central Government may, if the maintenance of the efficiency of the Service so requires call upon her to resign. Therefore this rule does not compel unmarried women to resign on marriage as a matter of course as is the case in the respondent-concern. It is only when the Central Government considers that marriage has impaired the efficiency of the woman concerned that the Central Government may call upon her to resign. The rule which is in force in the respondent concern however assumes that merely by marriage the efficiency of the woman employee is impaired and such an assumption in our opinion is not justified. At any rate this rule for the. Indian Administrative Service which has been brought to our notice only for purposes of comparison does not justify the drastic rule that we have in the in the present case where an unmarried woman is compelled to resign immediately she marries without regard to her continued efficiency.6. On a careful consideration of the reasons advanced on behalf on the respondent in support of the existing rule we are of opinion that the reasons do not justify such a drastic rule. W
### Response:
1
### Explanation:
2. Ordinarily we see no reason for such a rule requiring unmarried women to give up service on marriage, particularly when it is not disputed that no such rule exists in other industries. It is also not in dispute that no such rule exists in other departments of the respondent concern itself and it is only in one department that the rule is in force. It can only be upheld if the respondent shows that there are good and convincing reasons why in this particular department of the pharmaceutical industry it is necessary to have such a rule. The only reason given for enforcement of this rule in this department of the respondent - concern is that the workmen have to work in teams in this department and that requires that they should be regular and that this cannot be expected from married women for obvious reasons, and that there is greater absenteeism among married women than among unmarried women or widows against whom there is no bar of thiswill be seen that this rule for the Indian Administrative Service is not unqualified like the rule in force in the respondents concern. It only lays down that where an unmarried woman marries subsequently, the Central Government may, if the maintenance of the efficiency of the Service so requires call upon her to resign. Therefore this rule does not compel unmarried women to resign on marriage as a matter of course as is the case in the respondent-concern. It is only when the Central Government considers that marriage has impaired the efficiency of the woman concerned that the Central Government may call upon her to resign. The rule which is in force in the respondent concern however assumes that merely by marriage the efficiency of the woman employee is impaired and such an assumption in our opinion is not justified. At any rate this rule for the. Indian Administrative Service which has been brought to our notice only for purposes of comparison does not justify the drastic rule that we have in the in the present case where an unmarried woman is compelled to resign immediately she marries without regard to her continued efficiency.6. On a careful consideration of the reasons advanced on behalf on the respondent in support of the existing rule we are of opinion that the reasons do not justify such a drastic rule. We therefore allow the appeal and direct that the rule in question in the form in which it exists at present be abrogated. The abrogation shall take effect from the date of this judgment. The appellants will get their cost from the respondent company.
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Nain Sukh Das And Another Vs. The State Of Uttar Pradesh And Others | right under article 15 (1) against alleged violation thereof by the respondents.2. The petitioners are three residents of Etah in Uttar Pradesh. They complain that at the by election to the Municipal Board of Etah held on November 2, 1951, December 8, 1951, and March 17, 1952, at which respondents 4, 11 and 12 were respectively elected, the Petitioners were deprived of their rights to exercise their votes and to seek their election as candidates, as those by-elections were held on communal lines on the basis of separate electorates contrary to the provisions of the Constitution. They also allege that the nomination of respondent 3 as a member of the Board by the Government was an illegal exercise of its powers, as the interest which that respondent was nominated to represent in the Board was already sufficiently represented. The petition ners accordingly pray for the issue of writs of quo warranto, mandamus and other appropriate writs or directions to respondents 3, 4, 11 and 12 to show under what authority they are acting as members of the Board and to prevent them from acting assuchmembers. Tbe petitioners also ask for wkits on the District Magistrate and the Civil Judge of Etah, respondents 2 and 13 respectively, directing them not to hold or permit the holding of any meeting of the Board which is said to be illegally constituted.3. Now, it cannot be seriously disputed that any law providing for elections on the basis of separate electo- rates for members of different religious communities offends against article 15 (1) of the Constitution which runs thus"15 (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them."4. This constitutional mandate to the State not to diis- criminate against any citizen on the ground, inter- alia, of religion clearly extends to political as.well as to other rights, and any election held after the Constitution in , pursuance of such a law subject to clause (4) must be held void as being repugnant to the Constitution. But the question is whether the petitioners are now entitled to the relief they seek in this application under article 32.5. It is true, as pointed out in the Cross Roads case[1950] S.C.R 594 that article 32 provides, in some respects, for a more effective remedy through this court than article 226 does through the High Courts. But the scope of the remedy is clearly narrower in that it is restricted solely to enforcement of fundamental rights conferred by Part III of the Constitution. Any right, for instance, which the petitioners may have as rate-payers in the Municipality to insist that the Board should be legally constituted and that respondents 3, 4, 11 and 12, who are not properly elected or nominated members, should not be permitted to take part in the proceedings of the Board, is outside the purview of article 32, as such right, even if it exists, is not a fundamental right conferred by Part 111.6. Petitioners learned counsel, however, contended that the fundamental right conferred by article 15 (1) on the petitioners as citizens of India was violated by the elections in question having been held on a basis which discriminated against the petitioners on the ground of their religion in that it precluded them from exercising their franchise in relation to all the candidates and from contesting the elections without regard to the reservation of seats on communal basis. Learned counsel, also submitted that the delimitation of the constituencies on communal lines was a denial of equality to the petitioners in the matter of their political rights and in that respect also infringed their fundamental right under article 14. We are unable to accede to these contentions.7. It is plain that the fundamental right conferred by article 15(1) is conferred on a citizen as an individual and is a guarantee against his being subjected to discrimination in the matter of the rights, privileges and immunities pertaining to him as a citizen generally. It is not the petitioners case that any discrimination is now being practised or threatened against them. Their grievance is that the mode of election by separate electorates formed on communal lines involved discrimination against them in relation to seats other than those reserved for their respective communities as to which they could not exercise their right to vote or their right to stand as candidates. There is no suggestion that the petitioners actually sought to assert those rights by taking appropriate proceedings to have the bar removed and the election conducted in accordance with the Constitution. In fact, the petitioners acquiesced in the elections being conducted under the old system of separate electorates and felt no discrimination having been practised against them until a no-confidence motion was tabled recently against the former Chairman who has since lost his seat as a result of that motion having been carried. Thus, the infringement of their fundamental rights under article 15(1) and art 61 14, that is, the discrimination practised against them, of which they now complain, related to rights which they in fact never sought to exercise and took no steps to assert, while there was still room for doing so, and for the exercise of which the opportunity is now lost. But, argues Mr. Isaacs, the election of the respondents 4 11 and 12 being void, they are no better than usurpers, and the petitioners are entitled to prevent them from functioning as members of the Municipal Board. It may be, as we have already remarked, that the petitioners could claim such relief as ratepayers of the Municipality in appropriately framed proceedings, but there is no question of enforcing petitioners funda mental right under article 15(1) or article 14 in such claim, There is still less ground for seeking relief on that basis aoainst respondent 3 who is only a nominated member.8. The petitioners appear to have misconceived their remedy and their application under article 32 must fail. | 0[ds]It is true, as pointed out in theCross Roads case[1950] S.C.R 594that article 32 provides, in some respects, for a more effective remedy through this court than article 226 does through the High Courts. But the scope of the remedy is clearly narrower in that it is restricted solely to enforcement of fundamental rights conferred by Part III of the Constitution. Any right, for instance, which the petitioners may have as rate-payers in the Municipality to insist that the Board should be legally constituted and that respondents 3, 4, 11 and 12, who are not properly elected or nominated members, should not be permitted to take part in the proceedings of the Board, is outside the purview of article 32, as such right, even if it exists, is not a fundamental right conferred by Partis plain that the fundamental right conferred by article 15(1) is conferred on a citizen as an individual and is a guarantee against his being subjected to discrimination in the matter of the rights, privileges and immunities pertaining to him as a citizen generally. It is not the petitioners case that any discrimination is now being practised or threatened against them. Their grievance is that the mode of election by separate electorates formed on communal lines involved discrimination against them in relation to seats other than those reserved for their respective communities as to which they could not exercise their right to vote or their right to stand as candidates. There is no suggestion that the petitioners actually sought to assert those rights by taking appropriate proceedings to have the bar removed and the election conducted in accordance with the Constitution. In fact, the petitioners acquiesced in the elections being conducted under the old system of separate electorates and felt no discrimination having been practised against them until a no-confidence motion was tabled recently against the former Chairman who has since lost his seat as a result of that motion having been carried. Thus, the infringement of their fundamental rights under article 15(1) and art 61 14, that is, the discrimination practised against them, of which they now complain, related to rights which they in fact never sought to exercise and took no steps to assert, while there was still room for doing so, and for the exercise of which the opportunity is nowthe petitioners could claim such relief as ratepayers of the Municipality in appropriately framed proceedings, but there is no question of enforcing petitioners funda mental right under article 15(1) or article 14 in such claim, There is still less ground for seeking relief on that basis aoainst respondent 3 who is only a nominatedpetitioners appear to have misconceived their remedy | 0 | 1,128 | 494 | ### 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:
right under article 15 (1) against alleged violation thereof by the respondents.2. The petitioners are three residents of Etah in Uttar Pradesh. They complain that at the by election to the Municipal Board of Etah held on November 2, 1951, December 8, 1951, and March 17, 1952, at which respondents 4, 11 and 12 were respectively elected, the Petitioners were deprived of their rights to exercise their votes and to seek their election as candidates, as those by-elections were held on communal lines on the basis of separate electorates contrary to the provisions of the Constitution. They also allege that the nomination of respondent 3 as a member of the Board by the Government was an illegal exercise of its powers, as the interest which that respondent was nominated to represent in the Board was already sufficiently represented. The petition ners accordingly pray for the issue of writs of quo warranto, mandamus and other appropriate writs or directions to respondents 3, 4, 11 and 12 to show under what authority they are acting as members of the Board and to prevent them from acting assuchmembers. Tbe petitioners also ask for wkits on the District Magistrate and the Civil Judge of Etah, respondents 2 and 13 respectively, directing them not to hold or permit the holding of any meeting of the Board which is said to be illegally constituted.3. Now, it cannot be seriously disputed that any law providing for elections on the basis of separate electo- rates for members of different religious communities offends against article 15 (1) of the Constitution which runs thus"15 (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them."4. This constitutional mandate to the State not to diis- criminate against any citizen on the ground, inter- alia, of religion clearly extends to political as.well as to other rights, and any election held after the Constitution in , pursuance of such a law subject to clause (4) must be held void as being repugnant to the Constitution. But the question is whether the petitioners are now entitled to the relief they seek in this application under article 32.5. It is true, as pointed out in the Cross Roads case[1950] S.C.R 594 that article 32 provides, in some respects, for a more effective remedy through this court than article 226 does through the High Courts. But the scope of the remedy is clearly narrower in that it is restricted solely to enforcement of fundamental rights conferred by Part III of the Constitution. Any right, for instance, which the petitioners may have as rate-payers in the Municipality to insist that the Board should be legally constituted and that respondents 3, 4, 11 and 12, who are not properly elected or nominated members, should not be permitted to take part in the proceedings of the Board, is outside the purview of article 32, as such right, even if it exists, is not a fundamental right conferred by Part 111.6. Petitioners learned counsel, however, contended that the fundamental right conferred by article 15 (1) on the petitioners as citizens of India was violated by the elections in question having been held on a basis which discriminated against the petitioners on the ground of their religion in that it precluded them from exercising their franchise in relation to all the candidates and from contesting the elections without regard to the reservation of seats on communal basis. Learned counsel, also submitted that the delimitation of the constituencies on communal lines was a denial of equality to the petitioners in the matter of their political rights and in that respect also infringed their fundamental right under article 14. We are unable to accede to these contentions.7. It is plain that the fundamental right conferred by article 15(1) is conferred on a citizen as an individual and is a guarantee against his being subjected to discrimination in the matter of the rights, privileges and immunities pertaining to him as a citizen generally. It is not the petitioners case that any discrimination is now being practised or threatened against them. Their grievance is that the mode of election by separate electorates formed on communal lines involved discrimination against them in relation to seats other than those reserved for their respective communities as to which they could not exercise their right to vote or their right to stand as candidates. There is no suggestion that the petitioners actually sought to assert those rights by taking appropriate proceedings to have the bar removed and the election conducted in accordance with the Constitution. In fact, the petitioners acquiesced in the elections being conducted under the old system of separate electorates and felt no discrimination having been practised against them until a no-confidence motion was tabled recently against the former Chairman who has since lost his seat as a result of that motion having been carried. Thus, the infringement of their fundamental rights under article 15(1) and art 61 14, that is, the discrimination practised against them, of which they now complain, related to rights which they in fact never sought to exercise and took no steps to assert, while there was still room for doing so, and for the exercise of which the opportunity is now lost. But, argues Mr. Isaacs, the election of the respondents 4 11 and 12 being void, they are no better than usurpers, and the petitioners are entitled to prevent them from functioning as members of the Municipal Board. It may be, as we have already remarked, that the petitioners could claim such relief as ratepayers of the Municipality in appropriately framed proceedings, but there is no question of enforcing petitioners funda mental right under article 15(1) or article 14 in such claim, There is still less ground for seeking relief on that basis aoainst respondent 3 who is only a nominated member.8. The petitioners appear to have misconceived their remedy and their application under article 32 must fail.
### Response:
0
### Explanation:
It is true, as pointed out in theCross Roads case[1950] S.C.R 594that article 32 provides, in some respects, for a more effective remedy through this court than article 226 does through the High Courts. But the scope of the remedy is clearly narrower in that it is restricted solely to enforcement of fundamental rights conferred by Part III of the Constitution. Any right, for instance, which the petitioners may have as rate-payers in the Municipality to insist that the Board should be legally constituted and that respondents 3, 4, 11 and 12, who are not properly elected or nominated members, should not be permitted to take part in the proceedings of the Board, is outside the purview of article 32, as such right, even if it exists, is not a fundamental right conferred by Partis plain that the fundamental right conferred by article 15(1) is conferred on a citizen as an individual and is a guarantee against his being subjected to discrimination in the matter of the rights, privileges and immunities pertaining to him as a citizen generally. It is not the petitioners case that any discrimination is now being practised or threatened against them. Their grievance is that the mode of election by separate electorates formed on communal lines involved discrimination against them in relation to seats other than those reserved for their respective communities as to which they could not exercise their right to vote or their right to stand as candidates. There is no suggestion that the petitioners actually sought to assert those rights by taking appropriate proceedings to have the bar removed and the election conducted in accordance with the Constitution. In fact, the petitioners acquiesced in the elections being conducted under the old system of separate electorates and felt no discrimination having been practised against them until a no-confidence motion was tabled recently against the former Chairman who has since lost his seat as a result of that motion having been carried. Thus, the infringement of their fundamental rights under article 15(1) and art 61 14, that is, the discrimination practised against them, of which they now complain, related to rights which they in fact never sought to exercise and took no steps to assert, while there was still room for doing so, and for the exercise of which the opportunity is nowthe petitioners could claim such relief as ratepayers of the Municipality in appropriately framed proceedings, but there is no question of enforcing petitioners funda mental right under article 15(1) or article 14 in such claim, There is still less ground for seeking relief on that basis aoainst respondent 3 who is only a nominatedpetitioners appear to have misconceived their remedy
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Member, Board of Revenue Vs. Swaika Oil Mills | 1952, the Netherlands Selling Organisation Ltd. confirmed having bought from the respondents a certain quantity of linseed oil, "F.O.B. Calcutta price." The main terms of the contract of sale, which was made and concluded in Calcutta, are these:"The price of the goods was to be paid F.O.B. Calcutta against the first presentation of Clean on board Mates receipt along with the relative G.R.I. forms in triplicate; (b) The insurance charges were to be paid by the purchasers; (c) The purchasers were to send to the respondents their shipping broker for arranging booking of the shipping space for the goods to put on board the ship by the respondents; (d)The, respondents were to mark the goods with the shipment marks specified by the purchasers in the letter; (e) Due to import restrictions in Indonesia, the respondents were to ship not more than 500 imperial gallons o f linseed oil; and finally, (f) The "Export" was "to be made" under the export-licence of the respondents." 4. Mr. Shankar Ghose, who appears on behalf of the respondents, has raised a variety of interesting points, which, in our opinion, have lost their validity and relevance in view of a Constitution Bench decision of this Court in Mohd. Serajuddin etc. v. State of Orissa([1975] Suppl. S.C.R. 169.). 5. A catena of decisions bearing on the question as to when a sale c an be deemed to. be in the course of export was examined elaborately in that case. Applying the ratio of Serajuddins case to the facts before us, we are of the opinion that the, High Court of Calcutta, which did not have the benefit of that judgment, is wrong in holding that the sidle effected by the. respondents in favour of the Netherlands Selling Organisation is a sale in the. course of export. Our reasons for saying so are these:"(1)There was a direct, distinct and independent contract of sale between the respondents on one hand and their buyers in India, the Netherlands Selling Organisation. (2)The sale effected in pursuance of that contract is wholly unconnected with the sale by the Netherlands Organization to their foreign buyer. The two sales are not a part of one integral transaction.(3) There is no privity of contract between the respondents and the foreign buyer. They sold the goods in India, which the buyer on his own account exported to Indonesia. The foreign buyer was undisclosed to the respondents and, indeed, there is nothing on the record to show the terms of the contract between the Netherlands Organisation and their foreign buyer. Respondents knew nothing of these terms and their contract with the Netherlands Organization did not stand or fall by the terms of that sale. (4) The immediate cause of the movement of goods and the export was the contract between the Netherlands Organisation and their foreign buyer and not t he sale between the respondents and the Netherlands Organisation. The export was occasioned by the contract of sale between the Netherlands Organisation and their own buyer and not by the contract of sale between the respondents and the Netherlands Organisation. (5) The bill of lading was indisputably made out in the name of the Netherlands Organisation which obtained a complete and indefeasible title to the goods purchased by them from the respondents in India. (6)There was no obligation either on the respondents or on the Netherlands Organisation to export the goods out of India. (7)Respondents put the goods sold by them to the Netherlands Organisation on board the ship merely to facilitate the intended export of goods by the Netherlands Organisation. In loading the goods on the ship, respondents were acting as mere carriers, since they were under an obligation to do, so under their contract with the Netherlands Organisation. (8)Neither of the two transactions created any mutual rights and obligations as between the respondents and the person or persons whose benefit the export was made or intended. (9) The circumstances that the contract between the respondents and the Netherlands Organisation was in the F.O.B. form and that the payment of price was to be made only after the goods were put on board the ship by the respondents, do not affect the fundamental position that there were two distinct, independent and unconnected sales. The payment of price was made to depend on the fact of shipment for the reason that under the terms of the contract, which the respondents entered into with the Netherlands Organisation, a duty w as imposed upon the former to put the goods on board the ship. The Netherlands Organisation, instead of accepting the delivery of goods in a factory or godown of the respondents, stipulated that the goods, on their behalf, be put by the respondents on board the ship. The fact that the place of delivery is a foreign-bound ship cannot, by itself, make a sale one in the course of export. (10)The very agreement, which is the basis of the respondents claim for exemption from sales tax, begins with the assertion: "We herewith confirm having bought from you" the, goods mentioned in the letter. The sale transaction was thus concluded between the respondents and the Netherlands Organization in India. Lastly, (11)The fact that the, respondents were to lend to the Nether lends Organisation the use, of their export licence or that the respondents paid the customs duty and the Port, Commissioners charges, does not mean that the goods were exported by or at the instance of the respondents or that the sale effected by them in favour of the Netherlands Organisation occasioned the export. If the respondents name was shown as the exporters, it was because they had obligingly lent the use of their export licence to facilitate the export of the goods by the Netherlands Organization.For these reasons, we set aside the judgment of the High, Court and hold that the, sale in respect of which the respondents claimed exemption, is not a sale in the course of export and is, therefore, exigible to sales tax." 6. | 1[ds]Applying the ratio of Serajuddins case to the facts before us, we are of the opinion that the, High Court of Calcutta, which did not have the benefit of that judgment, is wrong in holding that the sidle effected by the. respondents in favour of the Netherlands Selling Organisation is a sale in the. course of export. Our reasons for saying so are these:(1)There was a direct, distinct and independent contract of sale between the respondents on one hand and their buyers in India, the Netherlands Selling Organisation(2)The sale effected in pursuance of that contract is wholly unconnected with the sale by the Netherlands Organization to their foreign buyer. The two sales are not a part of one integral transaction.(3) There is no privity of contract between the respondents and the foreign buyer. They sold the goods in India, which the buyer on his own account exported to Indonesia. The foreign buyer was undisclosed to the respondents and, indeed, there is nothing on the record to show the terms of the contract between the Netherlands Organisation and their foreign buyer. Respondents knew nothing of these terms and their contract with the Netherlands Organization did not stand or fall by the terms of that sale(4) The immediate cause of the movement of goods and the export was the contract between the Netherlands Organisation and their foreign buyer and not t he sale between the respondents and the Netherlands Organisation. The export was occasioned by the contract of sale between the Netherlands Organisation and their own buyer and not by the contract of sale between the respondents and the Netherlands Organisation(5) The bill of lading was indisputably made out in the name of the Netherlands Organisation which obtained a complete and indefeasible title to the goods purchased by them from the respondents in India(6)There was no obligation either on the respondents or on the Netherlands Organisation to export the goods out of India(7)Respondents put the goods sold by them to the Netherlands Organisation on board the ship merely to facilitate the intended export of goods by the Netherlands Organisation. In loading the goods on the ship, respondents were acting as mere carriers, since they were under an obligation to do, so under their contract with the Netherlands Organisation(8)Neither of the two transactions created any mutual rights and obligations as between the respondents and the person or persons whose benefit the export was made or intended(9) The circumstances that the contract between the respondents and the Netherlands Organisation was in the F.O.B. form and that the payment of price was to be made only after the goods were put on board the ship by the respondents, do not affect the fundamental position that there were two distinct, independent and unconnected sales. The payment of price was made to depend on the fact of shipment for the reason that under the terms of the contract, which the respondents entered into with the Netherlands Organisation, a duty w as imposed upon the former to put the goods on board the ship. The Netherlands Organisation, instead of accepting the delivery of goods in a factory or godown of the respondents, stipulated that the goods, on their behalf, be put by the respondents on board the ship. The fact that the place of delivery is a foreign-bound ship cannot, by itself, make a sale one in the course of export(10)The very agreement, which is the basis of the respondents claim for exemption from sales tax, begins with the assertion: "We herewith confirm having bought from you" the, goods mentioned in the letter. The sale transaction was thus concluded between the respondents and the Netherlands Organization in India. Lastly,(11)The fact that the, respondents were to lend to the Nether lends Organisation the use, of their export licence or that the respondents paid the customs duty and the Port, Commissioners charges, does not mean that the goods were exported by or at the instance of the respondents or that the sale effected by them in favour of the Netherlands Organisation occasioned the export. If the respondents name was shown as the exporters, it was because they had obligingly lent the use of their export licence to facilitate the export of the goods by the Netherlands Organization.For these reasons, we set aside the judgment of the High, Court and hold that the, sale in respect of which the respondents claimed exemption, is not a sale in the course of export and is, therefore, exigible to sales tax. | 1 | 1,516 | 851 | ### 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:
1952, the Netherlands Selling Organisation Ltd. confirmed having bought from the respondents a certain quantity of linseed oil, "F.O.B. Calcutta price." The main terms of the contract of sale, which was made and concluded in Calcutta, are these:"The price of the goods was to be paid F.O.B. Calcutta against the first presentation of Clean on board Mates receipt along with the relative G.R.I. forms in triplicate; (b) The insurance charges were to be paid by the purchasers; (c) The purchasers were to send to the respondents their shipping broker for arranging booking of the shipping space for the goods to put on board the ship by the respondents; (d)The, respondents were to mark the goods with the shipment marks specified by the purchasers in the letter; (e) Due to import restrictions in Indonesia, the respondents were to ship not more than 500 imperial gallons o f linseed oil; and finally, (f) The "Export" was "to be made" under the export-licence of the respondents." 4. Mr. Shankar Ghose, who appears on behalf of the respondents, has raised a variety of interesting points, which, in our opinion, have lost their validity and relevance in view of a Constitution Bench decision of this Court in Mohd. Serajuddin etc. v. State of Orissa([1975] Suppl. S.C.R. 169.). 5. A catena of decisions bearing on the question as to when a sale c an be deemed to. be in the course of export was examined elaborately in that case. Applying the ratio of Serajuddins case to the facts before us, we are of the opinion that the, High Court of Calcutta, which did not have the benefit of that judgment, is wrong in holding that the sidle effected by the. respondents in favour of the Netherlands Selling Organisation is a sale in the. course of export. Our reasons for saying so are these:"(1)There was a direct, distinct and independent contract of sale between the respondents on one hand and their buyers in India, the Netherlands Selling Organisation. (2)The sale effected in pursuance of that contract is wholly unconnected with the sale by the Netherlands Organization to their foreign buyer. The two sales are not a part of one integral transaction.(3) There is no privity of contract between the respondents and the foreign buyer. They sold the goods in India, which the buyer on his own account exported to Indonesia. The foreign buyer was undisclosed to the respondents and, indeed, there is nothing on the record to show the terms of the contract between the Netherlands Organisation and their foreign buyer. Respondents knew nothing of these terms and their contract with the Netherlands Organization did not stand or fall by the terms of that sale. (4) The immediate cause of the movement of goods and the export was the contract between the Netherlands Organisation and their foreign buyer and not t he sale between the respondents and the Netherlands Organisation. The export was occasioned by the contract of sale between the Netherlands Organisation and their own buyer and not by the contract of sale between the respondents and the Netherlands Organisation. (5) The bill of lading was indisputably made out in the name of the Netherlands Organisation which obtained a complete and indefeasible title to the goods purchased by them from the respondents in India. (6)There was no obligation either on the respondents or on the Netherlands Organisation to export the goods out of India. (7)Respondents put the goods sold by them to the Netherlands Organisation on board the ship merely to facilitate the intended export of goods by the Netherlands Organisation. In loading the goods on the ship, respondents were acting as mere carriers, since they were under an obligation to do, so under their contract with the Netherlands Organisation. (8)Neither of the two transactions created any mutual rights and obligations as between the respondents and the person or persons whose benefit the export was made or intended. (9) The circumstances that the contract between the respondents and the Netherlands Organisation was in the F.O.B. form and that the payment of price was to be made only after the goods were put on board the ship by the respondents, do not affect the fundamental position that there were two distinct, independent and unconnected sales. The payment of price was made to depend on the fact of shipment for the reason that under the terms of the contract, which the respondents entered into with the Netherlands Organisation, a duty w as imposed upon the former to put the goods on board the ship. The Netherlands Organisation, instead of accepting the delivery of goods in a factory or godown of the respondents, stipulated that the goods, on their behalf, be put by the respondents on board the ship. The fact that the place of delivery is a foreign-bound ship cannot, by itself, make a sale one in the course of export. (10)The very agreement, which is the basis of the respondents claim for exemption from sales tax, begins with the assertion: "We herewith confirm having bought from you" the, goods mentioned in the letter. The sale transaction was thus concluded between the respondents and the Netherlands Organization in India. Lastly, (11)The fact that the, respondents were to lend to the Nether lends Organisation the use, of their export licence or that the respondents paid the customs duty and the Port, Commissioners charges, does not mean that the goods were exported by or at the instance of the respondents or that the sale effected by them in favour of the Netherlands Organisation occasioned the export. If the respondents name was shown as the exporters, it was because they had obligingly lent the use of their export licence to facilitate the export of the goods by the Netherlands Organization.For these reasons, we set aside the judgment of the High, Court and hold that the, sale in respect of which the respondents claimed exemption, is not a sale in the course of export and is, therefore, exigible to sales tax." 6.
### Response:
1
### Explanation:
Applying the ratio of Serajuddins case to the facts before us, we are of the opinion that the, High Court of Calcutta, which did not have the benefit of that judgment, is wrong in holding that the sidle effected by the. respondents in favour of the Netherlands Selling Organisation is a sale in the. course of export. Our reasons for saying so are these:(1)There was a direct, distinct and independent contract of sale between the respondents on one hand and their buyers in India, the Netherlands Selling Organisation(2)The sale effected in pursuance of that contract is wholly unconnected with the sale by the Netherlands Organization to their foreign buyer. The two sales are not a part of one integral transaction.(3) There is no privity of contract between the respondents and the foreign buyer. They sold the goods in India, which the buyer on his own account exported to Indonesia. The foreign buyer was undisclosed to the respondents and, indeed, there is nothing on the record to show the terms of the contract between the Netherlands Organisation and their foreign buyer. Respondents knew nothing of these terms and their contract with the Netherlands Organization did not stand or fall by the terms of that sale(4) The immediate cause of the movement of goods and the export was the contract between the Netherlands Organisation and their foreign buyer and not t he sale between the respondents and the Netherlands Organisation. The export was occasioned by the contract of sale between the Netherlands Organisation and their own buyer and not by the contract of sale between the respondents and the Netherlands Organisation(5) The bill of lading was indisputably made out in the name of the Netherlands Organisation which obtained a complete and indefeasible title to the goods purchased by them from the respondents in India(6)There was no obligation either on the respondents or on the Netherlands Organisation to export the goods out of India(7)Respondents put the goods sold by them to the Netherlands Organisation on board the ship merely to facilitate the intended export of goods by the Netherlands Organisation. In loading the goods on the ship, respondents were acting as mere carriers, since they were under an obligation to do, so under their contract with the Netherlands Organisation(8)Neither of the two transactions created any mutual rights and obligations as between the respondents and the person or persons whose benefit the export was made or intended(9) The circumstances that the contract between the respondents and the Netherlands Organisation was in the F.O.B. form and that the payment of price was to be made only after the goods were put on board the ship by the respondents, do not affect the fundamental position that there were two distinct, independent and unconnected sales. The payment of price was made to depend on the fact of shipment for the reason that under the terms of the contract, which the respondents entered into with the Netherlands Organisation, a duty w as imposed upon the former to put the goods on board the ship. The Netherlands Organisation, instead of accepting the delivery of goods in a factory or godown of the respondents, stipulated that the goods, on their behalf, be put by the respondents on board the ship. The fact that the place of delivery is a foreign-bound ship cannot, by itself, make a sale one in the course of export(10)The very agreement, which is the basis of the respondents claim for exemption from sales tax, begins with the assertion: "We herewith confirm having bought from you" the, goods mentioned in the letter. The sale transaction was thus concluded between the respondents and the Netherlands Organization in India. Lastly,(11)The fact that the, respondents were to lend to the Nether lends Organisation the use, of their export licence or that the respondents paid the customs duty and the Port, Commissioners charges, does not mean that the goods were exported by or at the instance of the respondents or that the sale effected by them in favour of the Netherlands Organisation occasioned the export. If the respondents name was shown as the exporters, it was because they had obligingly lent the use of their export licence to facilitate the export of the goods by the Netherlands Organization.For these reasons, we set aside the judgment of the High, Court and hold that the, sale in respect of which the respondents claimed exemption, is not a sale in the course of export and is, therefore, exigible to sales tax.
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K. Hutchi Gowder Vs. Richobdas Pathaimull & Co | of a debt incurred after the Act came into force.5. Realizing this difficulty, Mr. Viswanatha Sastri relied upon the provisions of S. 13 itself and contends that the said Section provides, in the case of debts incurred after the Parent Act came into force, both for the substantive relief as well as for the machinery to give the said relief. The said Section reads:"In any proceeding for recovery of a debt, the Court shall scale down all interest due on any debt incurred by an agriculturist after the commencement of this Act, so as not to exceed a sum calculated at 6-1/4 per cent. per annum, simple interest. . . . . . .."The Government by notification reduced the rate of interest to 5-1/2 per cent, per annum with effect from July 29, 1947. Let us scrutinize the provisions of the Section in the light of the arguments advanced.6. Learned counsel asks us to read the words "decree debt" instead of "debt" in S. 13 of the Parent Act, for "debt is defined to take in a decree debt, and by so reading, he contends, in any proceeding, which according to him, includes a final decree application the court shall scale down all interest in the manner prescribed thereunder. It is further argued that final decree proceedings are only proceedings in a suit and, therefore, the word "recovery" in the sub-section is appropriate in the context of a decree debt. This argument, if accepted, disturbs the entire scheme of the Parent Act. Section 13 is one of the group of Sections viz., Ss. 8, 9 and 13, dealing with the principles of scaling down in a proceeding for the recovery of a debt. But where a decree is to be amended, the Act has taken care to provide expressly for the amendment of the decree. If the Legislature intended to provide for the amendment of decrees even in cases falling under S. 13, it would have added another appropriate clause in S. 19. The absence of any such clause indicates an intention that in cases of debts comprehended by S. 13, the Legislature gives only a limited relief expressly provided thereunder. It is said, so, far as the reopening of decrees after the Parent Act came into force is concerned, whether in respect of debts incurred before or after the said Act, there cannot possibly be a justification for a difference in the manner of their treatment. A plausible reason can be discerned for this legislative distinction between debts incurred before the Act and those incurred after the Act, for in the former when the debts were incurred the Act was not in existence and, as the debtors could not have anticipated the provisions of the Act, they were given the summary remedy, but the agriculturists who incurred debts after the Parent Act with open eyes were denied the same; while in the former, they were allowed to reopen decrees made in respect of the said debts before or after the Act, in the latter they could claim relief only in an appropriate proceeding before the decree was made and that too was confined to the limited relief in regard to the rate of interest provided thereunder. The difference in the treatment of the two categories of decrees was brought about by sub-s. (2) of S. 19 added by a later amendment. Whatever may be the reason for the difference, we cannot extend the scope of S. 13 by analogy or by stretching the meaning of the words "proceeding" and "recovery".7. Reliance is placed upon S. 13-A of the Parent Act, which reads:"Where a debt is incurred by a person who would be an agriculturist as defined in Section 3(ii) but for the operation of proviso (B) or proviso (C) to that Section, the rate of interest applicable to the debt shall be the rate applicable to it under the law, custom, contract or decree of Court under which the debt arises or the rate applicable to an agriculturist under Section 13, whichever rate is less."On the basis of this Section a contention 13 raised that Ss. is and 13A relate to the same subject-matter with the difference that while S. 13 applies to agriculturists who incurred debts after the Parent Act came into force, S. 13A applies to persons who would be agriculturists but for the provisos (B) and (C) of S. 3(ii) in respect of debts incurred after the Act, and as a fair reading of S. 13-A indicates that it applies to decrees made in regard to debts incurred after the Act, it must be interpreted reasonably that S. 13 also applies to such decrees. Mr. Pathak, learned counsel for the respondent, on the other hand, contends that S. 13-A only applies to pre-Act debts, as S. 7 which declares the scheme of scaling down of debts applies only to pre-Act debts and the only exception to it is S. 13-A. Be that as it may, we cannot construe S. 13 with the aid of S. 13-A which was introduced by the Amending Act 23 of 1948. This appeal does not call for an interpretation of S. 13-A of the Act and we shall not express any opinion thereon.8. The legal position may be briefly stated thus. Sections 7, 8, 9 and 13 form a group of Sections providing the principles of scaling down of debts incurred by agriculturists under different situations. A debt can be scaled down in an appropriate proceeding taken in respect of the same. But in the case of debts that have ripened into decrees; S. 19 (1) and (2) prescribe a special procedure for reopening the decree only in respect of debts incurred before the Parent Act. The Parent Act does not provide for the reopening of decrees made in respect of debts incurred after it came into force, and for understandable reasons the relief in respect of such decrees is specifically confined only to a concession in the rate of interest. | 1[ds]The general scheme of the Parent Act gathered therefrom may be briefly stated thus. The main object of the Parent Act was to give relief to agriculturists. "Debt" has been defined in S. 3 (iii) of the Parent Act as any liability in cash or kind, whether secured or unsecured, due from an agriculturist, whether payable under a decree or order of a civil or revenue court or otherwise. This definition is rather comprehensive: it takes in secured, unsecured and decree debts due from an agriculturist. Section 7 of the Parent Act declares that a debt so defined has to be scaled down in the manner prescribed by the said Act. Section 8 provides the mode of scaling down debts incurred before 1932 and S. 9, the debts incurred after 1932 but before March 22, 1938; and S. 13 deals with the scaling down of debts incurred after the commencement of the Parent Act. The relief granted under the said Act varies with the date of the debt depending upon whether it falls under one or other of the said three periods. While Ss. 7, 8, 9 and 13 give the principles for scaling down a debt, S. 19 provides the machinery for scalingargument, if accepted, disturbs the entire scheme of the Parent Act. Section 13 is one of the group of Sections viz., Ss. 8, 9 and 13, dealing with the principles of scaling down in a proceeding for the recovery of a debt. But where a decree is to be amended, the Act has taken care to provide expressly for the amendment of the decree. If the Legislature intended to provide for the amendment of decrees even in cases falling under S. 13, it would have added another appropriate clause in S. 19. The absence of any such clause indicates an intention that in cases of debts comprehended by S. 13, the Legislature gives only a limited relief expressly provided thereunder. It is said, so, far as the reopening of decrees after the Parent Act came into force is concerned, whether in respect of debts incurred before or after the said Act, there cannot possibly be a justification for a difference in the manner of their treatment. A plausible reason can be discerned for this legislative distinction between debts incurred before the Act and those incurred after the Act, for in the former when the debts were incurred the Act was not in existence and, as the debtors could not have anticipated the provisions of the Act, they were given the summary remedy, but the agriculturists who incurred debts after the Parent Act with open eyes were denied the same; while in the former, they were allowed to reopen decrees made in respect of the said debts before or after the Act, in the latter they could claim relief only in an appropriate proceeding before the decree was made and that too was confined to the limited relief in regard to the rate of interest provided thereunder. The difference in the treatment of the two categories of decrees was brought about by sub-s. (2) of S. 19 added by a later amendment. Whatever may be the reason for the difference, we cannot extend the scope of S. 13 by analogy or by stretching the meaning of the words "proceeding" and "recovery".The legal position may be briefly stated thus. Sections 7, 8, 9 and 13 form a group of Sections providing the principles of scaling down of debts incurred by agriculturists under different situations. A debt can be scaled down in an appropriate proceeding taken in respect of the same. But in the case of debts that have ripened into decrees; S. 19 (1) and (2) prescribe a special procedure for reopening the decree only in respect of debts incurred before the Parent Act. The Parent Act does not provide for the reopening of decrees made in respect of debts incurred after it came into force, and for understandable reasons the relief in respect of such decrees is specifically confined only to a concession in the rate ofposition, therefore, is that in the case of debts other thanthe scaling down process will have to be resorted to in an appropriate proceeding taken in respect of the debt and in the case of decrees in respect of debts incurred before the Parent Act whether made before or after the said Act, by filing an application under S. 19(1) or (2) of the Parent Act, as the case may be. But S. 19 on its express terms does not permit the filing of an application for amending a decree by scaling down a debt incurred after the Parent Act came into force. Doubtless,as Mr. Viswanatha Sastri contends, the Parent Act, to some extent, undermines the sanctity of decrees, but that is to implement the policy of the Legislature to give relief to agriculturists overburdened with debts. But a Court, particularly in the case of an expropriatory measure like the Act, cannot rely upon the supposed policy of the Legislature and extend the scope of the relief given to agriculturists by analogy.The scope of the relief shall necessarily be confined to that given by the Act expressly or by necessary implication. A fair reading of(1) and (2) of S. 19 of the Parent Act disclose beyond any reasonable doubt that the Legislature does not provide thereunder any machinery for reopening a decree made in respect of a debt incurred after the Act came into force. | 1 | 2,542 | 1,018 | ### 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:
of a debt incurred after the Act came into force.5. Realizing this difficulty, Mr. Viswanatha Sastri relied upon the provisions of S. 13 itself and contends that the said Section provides, in the case of debts incurred after the Parent Act came into force, both for the substantive relief as well as for the machinery to give the said relief. The said Section reads:"In any proceeding for recovery of a debt, the Court shall scale down all interest due on any debt incurred by an agriculturist after the commencement of this Act, so as not to exceed a sum calculated at 6-1/4 per cent. per annum, simple interest. . . . . . .."The Government by notification reduced the rate of interest to 5-1/2 per cent, per annum with effect from July 29, 1947. Let us scrutinize the provisions of the Section in the light of the arguments advanced.6. Learned counsel asks us to read the words "decree debt" instead of "debt" in S. 13 of the Parent Act, for "debt is defined to take in a decree debt, and by so reading, he contends, in any proceeding, which according to him, includes a final decree application the court shall scale down all interest in the manner prescribed thereunder. It is further argued that final decree proceedings are only proceedings in a suit and, therefore, the word "recovery" in the sub-section is appropriate in the context of a decree debt. This argument, if accepted, disturbs the entire scheme of the Parent Act. Section 13 is one of the group of Sections viz., Ss. 8, 9 and 13, dealing with the principles of scaling down in a proceeding for the recovery of a debt. But where a decree is to be amended, the Act has taken care to provide expressly for the amendment of the decree. If the Legislature intended to provide for the amendment of decrees even in cases falling under S. 13, it would have added another appropriate clause in S. 19. The absence of any such clause indicates an intention that in cases of debts comprehended by S. 13, the Legislature gives only a limited relief expressly provided thereunder. It is said, so, far as the reopening of decrees after the Parent Act came into force is concerned, whether in respect of debts incurred before or after the said Act, there cannot possibly be a justification for a difference in the manner of their treatment. A plausible reason can be discerned for this legislative distinction between debts incurred before the Act and those incurred after the Act, for in the former when the debts were incurred the Act was not in existence and, as the debtors could not have anticipated the provisions of the Act, they were given the summary remedy, but the agriculturists who incurred debts after the Parent Act with open eyes were denied the same; while in the former, they were allowed to reopen decrees made in respect of the said debts before or after the Act, in the latter they could claim relief only in an appropriate proceeding before the decree was made and that too was confined to the limited relief in regard to the rate of interest provided thereunder. The difference in the treatment of the two categories of decrees was brought about by sub-s. (2) of S. 19 added by a later amendment. Whatever may be the reason for the difference, we cannot extend the scope of S. 13 by analogy or by stretching the meaning of the words "proceeding" and "recovery".7. Reliance is placed upon S. 13-A of the Parent Act, which reads:"Where a debt is incurred by a person who would be an agriculturist as defined in Section 3(ii) but for the operation of proviso (B) or proviso (C) to that Section, the rate of interest applicable to the debt shall be the rate applicable to it under the law, custom, contract or decree of Court under which the debt arises or the rate applicable to an agriculturist under Section 13, whichever rate is less."On the basis of this Section a contention 13 raised that Ss. is and 13A relate to the same subject-matter with the difference that while S. 13 applies to agriculturists who incurred debts after the Parent Act came into force, S. 13A applies to persons who would be agriculturists but for the provisos (B) and (C) of S. 3(ii) in respect of debts incurred after the Act, and as a fair reading of S. 13-A indicates that it applies to decrees made in regard to debts incurred after the Act, it must be interpreted reasonably that S. 13 also applies to such decrees. Mr. Pathak, learned counsel for the respondent, on the other hand, contends that S. 13-A only applies to pre-Act debts, as S. 7 which declares the scheme of scaling down of debts applies only to pre-Act debts and the only exception to it is S. 13-A. Be that as it may, we cannot construe S. 13 with the aid of S. 13-A which was introduced by the Amending Act 23 of 1948. This appeal does not call for an interpretation of S. 13-A of the Act and we shall not express any opinion thereon.8. The legal position may be briefly stated thus. Sections 7, 8, 9 and 13 form a group of Sections providing the principles of scaling down of debts incurred by agriculturists under different situations. A debt can be scaled down in an appropriate proceeding taken in respect of the same. But in the case of debts that have ripened into decrees; S. 19 (1) and (2) prescribe a special procedure for reopening the decree only in respect of debts incurred before the Parent Act. The Parent Act does not provide for the reopening of decrees made in respect of debts incurred after it came into force, and for understandable reasons the relief in respect of such decrees is specifically confined only to a concession in the rate of interest.
### Response:
1
### Explanation:
The general scheme of the Parent Act gathered therefrom may be briefly stated thus. The main object of the Parent Act was to give relief to agriculturists. "Debt" has been defined in S. 3 (iii) of the Parent Act as any liability in cash or kind, whether secured or unsecured, due from an agriculturist, whether payable under a decree or order of a civil or revenue court or otherwise. This definition is rather comprehensive: it takes in secured, unsecured and decree debts due from an agriculturist. Section 7 of the Parent Act declares that a debt so defined has to be scaled down in the manner prescribed by the said Act. Section 8 provides the mode of scaling down debts incurred before 1932 and S. 9, the debts incurred after 1932 but before March 22, 1938; and S. 13 deals with the scaling down of debts incurred after the commencement of the Parent Act. The relief granted under the said Act varies with the date of the debt depending upon whether it falls under one or other of the said three periods. While Ss. 7, 8, 9 and 13 give the principles for scaling down a debt, S. 19 provides the machinery for scalingargument, if accepted, disturbs the entire scheme of the Parent Act. Section 13 is one of the group of Sections viz., Ss. 8, 9 and 13, dealing with the principles of scaling down in a proceeding for the recovery of a debt. But where a decree is to be amended, the Act has taken care to provide expressly for the amendment of the decree. If the Legislature intended to provide for the amendment of decrees even in cases falling under S. 13, it would have added another appropriate clause in S. 19. The absence of any such clause indicates an intention that in cases of debts comprehended by S. 13, the Legislature gives only a limited relief expressly provided thereunder. It is said, so, far as the reopening of decrees after the Parent Act came into force is concerned, whether in respect of debts incurred before or after the said Act, there cannot possibly be a justification for a difference in the manner of their treatment. A plausible reason can be discerned for this legislative distinction between debts incurred before the Act and those incurred after the Act, for in the former when the debts were incurred the Act was not in existence and, as the debtors could not have anticipated the provisions of the Act, they were given the summary remedy, but the agriculturists who incurred debts after the Parent Act with open eyes were denied the same; while in the former, they were allowed to reopen decrees made in respect of the said debts before or after the Act, in the latter they could claim relief only in an appropriate proceeding before the decree was made and that too was confined to the limited relief in regard to the rate of interest provided thereunder. The difference in the treatment of the two categories of decrees was brought about by sub-s. (2) of S. 19 added by a later amendment. Whatever may be the reason for the difference, we cannot extend the scope of S. 13 by analogy or by stretching the meaning of the words "proceeding" and "recovery".The legal position may be briefly stated thus. Sections 7, 8, 9 and 13 form a group of Sections providing the principles of scaling down of debts incurred by agriculturists under different situations. A debt can be scaled down in an appropriate proceeding taken in respect of the same. But in the case of debts that have ripened into decrees; S. 19 (1) and (2) prescribe a special procedure for reopening the decree only in respect of debts incurred before the Parent Act. The Parent Act does not provide for the reopening of decrees made in respect of debts incurred after it came into force, and for understandable reasons the relief in respect of such decrees is specifically confined only to a concession in the rate ofposition, therefore, is that in the case of debts other thanthe scaling down process will have to be resorted to in an appropriate proceeding taken in respect of the debt and in the case of decrees in respect of debts incurred before the Parent Act whether made before or after the said Act, by filing an application under S. 19(1) or (2) of the Parent Act, as the case may be. But S. 19 on its express terms does not permit the filing of an application for amending a decree by scaling down a debt incurred after the Parent Act came into force. Doubtless,as Mr. Viswanatha Sastri contends, the Parent Act, to some extent, undermines the sanctity of decrees, but that is to implement the policy of the Legislature to give relief to agriculturists overburdened with debts. But a Court, particularly in the case of an expropriatory measure like the Act, cannot rely upon the supposed policy of the Legislature and extend the scope of the relief given to agriculturists by analogy.The scope of the relief shall necessarily be confined to that given by the Act expressly or by necessary implication. A fair reading of(1) and (2) of S. 19 of the Parent Act disclose beyond any reasonable doubt that the Legislature does not provide thereunder any machinery for reopening a decree made in respect of a debt incurred after the Act came into force.
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State of Madras Vs. R. Nand Lal & Co | registered dealer in the State of Punjab is negatived by the scheme of the Central Sales Tax Act and the Rules framed thereunder. By S. 7 of the Central Sales Tax Act, every dealer liable to pay tax under the Act has to make an application for registration under the Act to such authority in the appropriate State as the Central Government may by general order specify. The authority to be specified is designated in the Central Sales Tax (Registration and Turnover) Rules, 1957, framed by the Central Government under S. 13 (1), the "notified authority": vide R. 2 (c). Rule 3 provides that an application for registration under S. 7 shall be made by a dealer to the notified authority in Form A. In exercise of the powers conferred by sub-s. (1) of S. 7 of the Central Sales Tax Act, 1956, the Central Government issued a notification No. S. R.O. 643, dated February 22, 1957, specifying the persons mentioned in Col. (3) of the Schedule thereto as the authorities to whom the dealers of the description in Col. (2) shall make the application for registration. Item 1 of the schedule requires a dealer having a single place of business in a State to make an application to, the authority competent to register him under the general sates tax law of the State if he were liable to be so registered and Item 2 provides that the dealer having more than one place of business in a State shall make an application to the authority competent to register him in respect of the principal place of business under the general sales tax law of the State if he were liable to be so registered. A registered dealer contemplated by R. 10 is, therefore, registered in the State where he has his place of business. The expression "assessing authority" is defined in the Central Sales Tax (Madras) Rules, 1957, as meaning any person authorized by the State Government to make any assessment under the Madras General Sales Tax Act, 1959 (Madras Act I of 1959). The dealer has again to obtain the form of declaration from the assessing authority in the State of Madras. These are clear indications that the rules framed by the Madras (government were intended to apply to dealers within the State of Madras. The High Court was, in our judgment right in holding that under the scheme of the Central Sales Tax Act and the Rules framed under that Act by the State of Madras, the injunction against the purchasing dealers in B. 10 (1) did not apply to dealers in the Stale of Punjab. It is unnecessary on that view to express any opinion on the question whether the State Government could. in exercise of the powers under S. 13 (4), impose upon dealers not within the State, obligations to comply with conditions relating to the contents of the C Form declarations. 8. Since R. 10 (1) requiring that a separate declaration form in respect of each individual transaction shall be furnished was intended only to apply to dealers in the State of Madras, and not to dealers outside the State. proviso to R. 10 (1) which directs that no single declaration shall cover more than one transaction of sale except in certain cases has no application to a purchasing dealer outside the State of Madras. Rule 10 (2) provides:"A registered dealer who claims to have made a sale to another registered dealer shall, in respect of such claim attach to his return in Form I the portion marked "original" of the declaration received by him from the purchasing dealer. The assessing authority may, in its discretion, also direct the selling dealer to produce for inspection the portion of the declaration marked "duplicate"." But this rule does not direct that a declaration covering more than one transaction of sale shall not be given. The rules framed by the Madras Government do not otherwise impose any binding obligation upon the selling dealer in the State of Madras to obtain a separate declaration form in respect of each sale transaction, nor do the rules visit him with a penalty on failure to comply with the requirement. 9. We are constrained to observe that the rule-making authorities have failed to appreciate the scheme of S. 13 of the Central Sales Tax? Act. We are of the opinion that it was not within the competence of the State authorities under S. 13 (3) and (4) of the Central Sales Tax Act to provide that a single declaration covering more than one transaction shall not be made. Authority to prescribe such an injunction cannot have its source in S. 13(3) or S. 13 (4) (N): it can only be in the authority conferred by 01. (d) of S. 13 (1) by the Central Government. The Central Government has, in exercise of the power under S. 13 (1) (d), prescribed the form of declaration and the particulars to be contained in the declaration. A direction that there shall be a separate declaration in respect of each individual transaction may appropriately be made in exercise of the power conferred under S. 13 (1) (d). The State Government is undoubtedly empowered to make, rules under sub-ss. (3) and (4) of S. 13: but the rules made by the State Government must not he inconsistent with the provisions of the Act and the rules made under sub-s. (1) of S. 13 to carry out the purposes of the Act. If the authority to make a rule prescribing that the declaration shall not contain more than one transaction can be made only under S. 13 (1) (d), the State Government cannot exercise that authority. The situation which has arisen in this case could have been avoided, if instead of each State making its rules requiring that no single declaration shall cover more than one transaction, the Central Government in exercise of the power under Section 13 (1) (d) of the Act had made the rules. | 0[ds]5. The assumption made by the High Court that no rule was framed by the State of Punjab under S. 13 (4) (e) of the Central Sales Tax Act requiring the purchasing dealers in the State of Punjab to issue a separate declaration form in respect of each individual transaction is erroneousBut for reasons which we will presently set out, the judgment of the High Court must still be affirmedEx facie, this rule imposes no obligation upon a dealer in the State of Madras wishing to sell goods; it applies to a dealer wishing to purchase goods from another dealer. The argument that Cl. (1) of R. 10 is intended to apply to a registered dealer in the State of Punjab is negatived by the scheme of the Central Sales Tax Act and the Rules framed thereunder. By S. 7 of the Central Sales Tax Act, every dealer liable to pay tax under the Act has to make an application for registration under the Act to such authority in the appropriate State as the Central Government may by general order specify. The authority to be specified is designated in the Central Sales Tax (Registration and Turnover) Rules, 1957, framed by the Central Government under S. 13 (1), the "notified authority": vide R. 2 (c). Rule 3 provides that an application for registration under S. 7 shall be made by a dealer to the notified authority in Form A. In exercise of the powers conferred by sub-s. (1) of S. 7 ofthe Central Sales Tax Act, 1956, the Central Government issued a notification No. S. R.O. 643, dated February 22, 1957, specifying the persons mentioned in Col. (3) of the Schedule thereto as the authorities to whom the dealers of the description in Col. (2) shall make the application for registration. Item 1 of the schedule requires a dealer having a single place of business in a State to make an application to, the authority competent to register him under the general sates tax law of the State if he were liable to be so registered and Item 2 provides that the dealer having more than one place of business in a State shall make an application to the authority competent to register him in respect of the principal place of business under the general sales tax law of the State if he were liable to be so registered. A registered dealer contemplated by R. 10 is, therefore, registered in the State where he has his place of business. The expression "assessing authority" is defined in the Central Sales Tax (Madras) Rules, 1957, as meaning any person authorized by the State Government to make any assessment under the Madras General Sales Tax Act, 1959 (Madras Act I of 1959). The dealer has again to obtain the form of declaration from the assessing authority in the State of Madras. These are clear indications that the rules framed by the Madras (government were intended to apply to dealers within the State of Madras. The High Court was, in our judgment right in holding that under the scheme of the Central Sales Tax Act and the Rules framed under that Act by the State of Madras, the injunction against the purchasing dealers in B. 10 (1) did not apply to dealers in the Stale of Punjab. It is unnecessary on that view to express any opinion on the question whether the State Government could. in exercise of the powers under S. 13 (4), impose upon dealers not within the State, obligations to comply with conditions relating to the contents of the C Form declarations8. Since R. 10 (1) requiring that a separate declaration form in respect of each individual transaction shall be furnished was intended only to apply to dealers in the State of Madras, and not to dealers outside the State. proviso to R. 10 (1) which directs that no single declaration shall cover more than one transaction of sale except in certain cases has no application to a purchasing dealer outside the State of MadrasBut this rule does not direct that a declaration covering more than one transaction of sale shall not be given. The rules framed by the Madras Government do not otherwise impose any binding obligation upon the selling dealer in the State of Madras to obtain a separate declaration form in respect of each sale transaction, nor do the rules visit him with a penalty on failure to comply with the requirement9. We are constrained to observe that the rule-making authorities have failed to appreciate the scheme of S. 13 of the Central Sales TaxAct. We are of the opinion that it was not within the competence of the State authorities under S. 13 (3) and (4) of the Central Sales Tax Act to provide that a single declaration covering more than one transaction shall not be made. Authority to prescribe such an injunction cannot have its source in S. 13(3) or S. 13 (4) (N): it can only be in the authority conferred by 01. (d) of S. 13 (1) by the Central Government. The Central Government has, in exercise of the power under S. 13 (1) (d), prescribed the form of declaration and the particulars to be contained in the declaration. A direction that there shall be a separate declaration in respect of each individual transaction may appropriately be made in exercise of the power conferred under S. 13 (1) (d). The State Government is undoubtedly empowered to make, rules under sub-ss. (3) and (4) of S. 13: but the rules made by the State Government must not he inconsistent with the provisions of the Act and the rules made under sub-s. (1) of S. 13 to carry out the purposes of the Act. If the authority to make a rule prescribing that the declaration shall not contain more than one transaction can be made only under S. 13 (1) (d), the State Government cannot exercise that authority. The situation which has arisen in this case could have been avoided, if instead of each State making its rules requiring that no single declaration shall cover more than one transaction, the Central Government in exercise of the power under Section 13 (1) (d) of the Act had made the rules3. It is common ground that the turnover was in respect of goods of the class specified in the certificate of registration of the registered dealer purchasing the goods as being intended for resale by him or for use by him in the process of manufacture of goods for sale. A registered dealer selling goods in the course ofe trade or commerce of the description referred to in. (3) is liable under S. 8 (1) of the Central Sales Tax Act to pay tax only at the rate of one per cent on his turnover. But to qualify himself for that rate of tax, he has to furnish to the prescribed authority a declaration duly filled and signed by the registered dealer to whom the goods are sold. Such a declaration must contain the prescribed particulars in the prescribed form obtained from the prescribed authority. If the selling dealer fails to furnish the declaration in the prescribed form, he is liable to pay tax at the higher rate mentioned in. (2)(b) of S. 8. | 0 | 3,115 | 1,376 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
registered dealer in the State of Punjab is negatived by the scheme of the Central Sales Tax Act and the Rules framed thereunder. By S. 7 of the Central Sales Tax Act, every dealer liable to pay tax under the Act has to make an application for registration under the Act to such authority in the appropriate State as the Central Government may by general order specify. The authority to be specified is designated in the Central Sales Tax (Registration and Turnover) Rules, 1957, framed by the Central Government under S. 13 (1), the "notified authority": vide R. 2 (c). Rule 3 provides that an application for registration under S. 7 shall be made by a dealer to the notified authority in Form A. In exercise of the powers conferred by sub-s. (1) of S. 7 of the Central Sales Tax Act, 1956, the Central Government issued a notification No. S. R.O. 643, dated February 22, 1957, specifying the persons mentioned in Col. (3) of the Schedule thereto as the authorities to whom the dealers of the description in Col. (2) shall make the application for registration. Item 1 of the schedule requires a dealer having a single place of business in a State to make an application to, the authority competent to register him under the general sates tax law of the State if he were liable to be so registered and Item 2 provides that the dealer having more than one place of business in a State shall make an application to the authority competent to register him in respect of the principal place of business under the general sales tax law of the State if he were liable to be so registered. A registered dealer contemplated by R. 10 is, therefore, registered in the State where he has his place of business. The expression "assessing authority" is defined in the Central Sales Tax (Madras) Rules, 1957, as meaning any person authorized by the State Government to make any assessment under the Madras General Sales Tax Act, 1959 (Madras Act I of 1959). The dealer has again to obtain the form of declaration from the assessing authority in the State of Madras. These are clear indications that the rules framed by the Madras (government were intended to apply to dealers within the State of Madras. The High Court was, in our judgment right in holding that under the scheme of the Central Sales Tax Act and the Rules framed under that Act by the State of Madras, the injunction against the purchasing dealers in B. 10 (1) did not apply to dealers in the Stale of Punjab. It is unnecessary on that view to express any opinion on the question whether the State Government could. in exercise of the powers under S. 13 (4), impose upon dealers not within the State, obligations to comply with conditions relating to the contents of the C Form declarations. 8. Since R. 10 (1) requiring that a separate declaration form in respect of each individual transaction shall be furnished was intended only to apply to dealers in the State of Madras, and not to dealers outside the State. proviso to R. 10 (1) which directs that no single declaration shall cover more than one transaction of sale except in certain cases has no application to a purchasing dealer outside the State of Madras. Rule 10 (2) provides:"A registered dealer who claims to have made a sale to another registered dealer shall, in respect of such claim attach to his return in Form I the portion marked "original" of the declaration received by him from the purchasing dealer. The assessing authority may, in its discretion, also direct the selling dealer to produce for inspection the portion of the declaration marked "duplicate"." But this rule does not direct that a declaration covering more than one transaction of sale shall not be given. The rules framed by the Madras Government do not otherwise impose any binding obligation upon the selling dealer in the State of Madras to obtain a separate declaration form in respect of each sale transaction, nor do the rules visit him with a penalty on failure to comply with the requirement. 9. We are constrained to observe that the rule-making authorities have failed to appreciate the scheme of S. 13 of the Central Sales Tax? Act. We are of the opinion that it was not within the competence of the State authorities under S. 13 (3) and (4) of the Central Sales Tax Act to provide that a single declaration covering more than one transaction shall not be made. Authority to prescribe such an injunction cannot have its source in S. 13(3) or S. 13 (4) (N): it can only be in the authority conferred by 01. (d) of S. 13 (1) by the Central Government. The Central Government has, in exercise of the power under S. 13 (1) (d), prescribed the form of declaration and the particulars to be contained in the declaration. A direction that there shall be a separate declaration in respect of each individual transaction may appropriately be made in exercise of the power conferred under S. 13 (1) (d). The State Government is undoubtedly empowered to make, rules under sub-ss. (3) and (4) of S. 13: but the rules made by the State Government must not he inconsistent with the provisions of the Act and the rules made under sub-s. (1) of S. 13 to carry out the purposes of the Act. If the authority to make a rule prescribing that the declaration shall not contain more than one transaction can be made only under S. 13 (1) (d), the State Government cannot exercise that authority. The situation which has arisen in this case could have been avoided, if instead of each State making its rules requiring that no single declaration shall cover more than one transaction, the Central Government in exercise of the power under Section 13 (1) (d) of the Act had made the rules.
### Response:
0
### Explanation:
3 provides that an application for registration under S. 7 shall be made by a dealer to the notified authority in Form A. In exercise of the powers conferred by sub-s. (1) of S. 7 ofthe Central Sales Tax Act, 1956, the Central Government issued a notification No. S. R.O. 643, dated February 22, 1957, specifying the persons mentioned in Col. (3) of the Schedule thereto as the authorities to whom the dealers of the description in Col. (2) shall make the application for registration. Item 1 of the schedule requires a dealer having a single place of business in a State to make an application to, the authority competent to register him under the general sates tax law of the State if he were liable to be so registered and Item 2 provides that the dealer having more than one place of business in a State shall make an application to the authority competent to register him in respect of the principal place of business under the general sales tax law of the State if he were liable to be so registered. A registered dealer contemplated by R. 10 is, therefore, registered in the State where he has his place of business. The expression "assessing authority" is defined in the Central Sales Tax (Madras) Rules, 1957, as meaning any person authorized by the State Government to make any assessment under the Madras General Sales Tax Act, 1959 (Madras Act I of 1959). The dealer has again to obtain the form of declaration from the assessing authority in the State of Madras. These are clear indications that the rules framed by the Madras (government were intended to apply to dealers within the State of Madras. The High Court was, in our judgment right in holding that under the scheme of the Central Sales Tax Act and the Rules framed under that Act by the State of Madras, the injunction against the purchasing dealers in B. 10 (1) did not apply to dealers in the Stale of Punjab. It is unnecessary on that view to express any opinion on the question whether the State Government could. in exercise of the powers under S. 13 (4), impose upon dealers not within the State, obligations to comply with conditions relating to the contents of the C Form declarations8. Since R. 10 (1) requiring that a separate declaration form in respect of each individual transaction shall be furnished was intended only to apply to dealers in the State of Madras, and not to dealers outside the State. proviso to R. 10 (1) which directs that no single declaration shall cover more than one transaction of sale except in certain cases has no application to a purchasing dealer outside the State of MadrasBut this rule does not direct that a declaration covering more than one transaction of sale shall not be given. The rules framed by the Madras Government do not otherwise impose any binding obligation upon the selling dealer in the State of Madras to obtain a separate declaration form in respect of each sale transaction, nor do the rules visit him with a penalty on failure to comply with the requirement9. We are constrained to observe that the rule-making authorities have failed to appreciate the scheme of S. 13 of the Central Sales TaxAct. We are of the opinion that it was not within the competence of the State authorities under S. 13 (3) and (4) of the Central Sales Tax Act to provide that a single declaration covering more than one transaction shall not be made. Authority to prescribe such an injunction cannot have its source in S. 13(3) or S. 13 (4) (N): it can only be in the authority conferred by 01. (d) of S. 13 (1) by the Central Government. The Central Government has, in exercise of the power under S. 13 (1) (d), prescribed the form of declaration and the particulars to be contained in the declaration. A direction that there shall be a separate declaration in respect of each individual transaction may appropriately be made in exercise of the power conferred under S. 13 (1) (d). The State Government is undoubtedly empowered to make, rules under sub-ss. (3) and (4) of S. 13: but the rules made by the State Government must not he inconsistent with the provisions of the Act and the rules made under sub-s. (1) of S. 13 to carry out the purposes of the Act. If the authority to make a rule prescribing that the declaration shall not contain more than one transaction can be made only under S. 13 (1) (d), the State Government cannot exercise that authority. The situation which has arisen in this case could have been avoided, if instead of each State making its rules requiring that no single declaration shall cover more than one transaction, the Central Government in exercise of the power under Section 13 (1) (d) of the Act had made the rules3. It is common ground that the turnover was in respect of goods of the class specified in the certificate of registration of the registered dealer purchasing the goods as being intended for resale by him or for use by him in the process of manufacture of goods for sale. A registered dealer selling goods in the course ofe trade or commerce of the description referred to in. (3) is liable under S. 8 (1) of the Central Sales Tax Act to pay tax only at the rate of one per cent on his turnover. But to qualify himself for that rate of tax, he has to furnish to the prescribed authority a declaration duly filled and signed by the registered dealer to whom the goods are sold. Such a declaration must contain the prescribed particulars in the prescribed form obtained from the prescribed authority. If the selling dealer fails to furnish the declaration in the prescribed form, he is liable to pay tax at the higher rate mentioned in. (2)(b) of S. 8.
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State of Andhra Pradesh Vs. M. Ramakishtaiah and Company | This appeal is preferred against the judgment of the Andhra Pradesh High Court allowing the tax revision case filed by the respondent-assessee under section22 of the Andhra Pradesh General Sales Tax Act. The order of assessment was made in the month of September, 1969. That order was sought to be revised by the Deputy Commissioner under sub-section (2) of section20 of the Act. After hearing the respondent, the Deputy Commissioner passed orders prejudicial to the assessee. The Deputy Commissioner says that he passed the said orders on January 6, 1973, but it was served upon the assessee only on November 21, 1973. According to section 20, an order in revision must be passed within four years of the order of assessment. In this case, service of the order is after the expiry of four years from the date of the order of assessment. In the circumstances, the assessee raised a contention that the order was in fact made after the expiry of four years but was ante-dated, and therefore, it is bad. The High Court accepted this submission but on a different reasoning. The High Court was of the opinion that every order must be communicated within a reasonable period and since the order of the Deputy Commissioner in this Case was not so communicated, the High court declared that the respondent-assessee shall not be bound by it. This was done by the High Court following its decision in T.R.C. No. 1 of 1976 pronounced on the same day [against which judgment Civil Appeal No. 1014 of 1977 (in this batch) has been filed].We are of the opinion that the theory evolved by the High Court may not be really called for in the circumstances of the case. We are of the opinion that this appeal has to be dismissed on the ground urged by the assessee himself. As stated above, the order of the Deputy Commissioner is said to have been made on January 6, 1973, but it was served upon the assessee on November 21, 1973, i.e., precisely 10 1/2 months later. There is no explanation from the Deputy Commissioner why it was so delayed. If there had been a proper explanation, it would have been a different matter. But, in the absence of any explanation whatsoever, we must presume that the order was not made on the date it purports to have been made. It could have been made after the expiry of the prescribed four years period. | 0[ds]We are of the opinion that the theory evolved by the High Court may not be really called for in the circumstances of the case. We are of the opinion that this appeal has to be dismissed on the ground urged by the assessee himself. As stated above, the order of the Deputy Commissioner is said to have been made on January 6, 1973, but it was served upon the assessee on November 21, 1973, i.e., precisely 10 1/2 months later. There is no explanation from the Deputy Commissioner why it was so delayed. If there had been a proper explanation, it would have been a different matter. But, in the absence of any explanation whatsoever, we must presume that the order was not made on the date it purports to have been made. It could have been made after the expiry of the prescribed four years period. | 0 | 458 | 168 | ### 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:
This appeal is preferred against the judgment of the Andhra Pradesh High Court allowing the tax revision case filed by the respondent-assessee under section22 of the Andhra Pradesh General Sales Tax Act. The order of assessment was made in the month of September, 1969. That order was sought to be revised by the Deputy Commissioner under sub-section (2) of section20 of the Act. After hearing the respondent, the Deputy Commissioner passed orders prejudicial to the assessee. The Deputy Commissioner says that he passed the said orders on January 6, 1973, but it was served upon the assessee only on November 21, 1973. According to section 20, an order in revision must be passed within four years of the order of assessment. In this case, service of the order is after the expiry of four years from the date of the order of assessment. In the circumstances, the assessee raised a contention that the order was in fact made after the expiry of four years but was ante-dated, and therefore, it is bad. The High Court accepted this submission but on a different reasoning. The High Court was of the opinion that every order must be communicated within a reasonable period and since the order of the Deputy Commissioner in this Case was not so communicated, the High court declared that the respondent-assessee shall not be bound by it. This was done by the High Court following its decision in T.R.C. No. 1 of 1976 pronounced on the same day [against which judgment Civil Appeal No. 1014 of 1977 (in this batch) has been filed].We are of the opinion that the theory evolved by the High Court may not be really called for in the circumstances of the case. We are of the opinion that this appeal has to be dismissed on the ground urged by the assessee himself. As stated above, the order of the Deputy Commissioner is said to have been made on January 6, 1973, but it was served upon the assessee on November 21, 1973, i.e., precisely 10 1/2 months later. There is no explanation from the Deputy Commissioner why it was so delayed. If there had been a proper explanation, it would have been a different matter. But, in the absence of any explanation whatsoever, we must presume that the order was not made on the date it purports to have been made. It could have been made after the expiry of the prescribed four years period.
### Response:
0
### Explanation:
We are of the opinion that the theory evolved by the High Court may not be really called for in the circumstances of the case. We are of the opinion that this appeal has to be dismissed on the ground urged by the assessee himself. As stated above, the order of the Deputy Commissioner is said to have been made on January 6, 1973, but it was served upon the assessee on November 21, 1973, i.e., precisely 10 1/2 months later. There is no explanation from the Deputy Commissioner why it was so delayed. If there had been a proper explanation, it would have been a different matter. But, in the absence of any explanation whatsoever, we must presume that the order was not made on the date it purports to have been made. It could have been made after the expiry of the prescribed four years period.
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Hukumchand Mills Ltd Vs. Commissioner Of Income-Tax, Central Bombay & Ors | allowed under the Industrial Tax Rules, or if it was allowed, whether such depreciation was under any law or rules relating to income-tax or super-tax etc., not having been determined, the contention raised by the Department on the basis of paragraph 2 of the Taxation Laws (Part B States) (Removal of Difficulties) Order, 1950, could not be entertained at that stage, and that contention has been accepted by the Tribunal. In these circumstances, our answer to question No. 2 as framed is that Paragraph 2 of the Taxation Laws (Part B States) (Removal of Difficulties) Order, 1950, is a valid provision of law, but it will have application to the present case only if the questions which the Tribunal has asked the Income-tax officer to determine, are determined by the Income-tax Officer in favour of the Department". Civil Appeals Nos. 411 to 413 of 1965: 8. The sole question argued on behalf of the assessee in these appeals is that the Tribunal was not competent to go into the question whether the provisions of paragraph 2 of the Taxation Laws Order were applicable to the present case and the respondent should not have been allowed to raise the contention for the first time before the Tribunal. It was also argued that the Tribunal ought not to have remanded the case to the Income-tax Officer for ascertaining whether any depreciation was allowed under the Industrial Tax Rules and whether such depreciation should be taken into account for the purpose of computing the written down value. In our opinion there is no justification for this argument. In the first place, no objection was raised before the Tribunal or before the High Court that the department should not have been allowed to raise the question for the first time with regard to the application of paragraph 2 of the Taxation Laws Order. We shall, however, assume in favour of the assessee that the question was implicit in the question actually framed and referred to the High Court. Even upon that assumption we are of opinion that the Tribunal had jurisdiction to permit the question to be raised for the first time in appeal. The powers of the Tribunal in dealing with appeals are expressed in S. 33 (4) of the Act in the widest possible terms. Section 33 (3) of the Act states that "An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner" Section 33(4) reads as follows:"4. The Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicate any such orders to the assessee and the Commissioner." The word "thereon", of course, restricts the jurisdiction of the Tribunal to the subject-matter of the appeal. The words pass such orders as the Tribunal thinks fit" include all the powers (except possibly the power of enhancement) which are conferred upon the Appellate Assistant Commissioner by S. 31 of the Act. Consequently the Tribunal has authority under this Section to direct the Appellate Assistant Commissioner or the Income-tax Officer to hold a further enquiry and dispose of the case on the basis of such enquiry. Rule 12 of the Appellate Tribunal Rules, 1946 made under S. 5-A (8) of the Act provides as follows:"The appellant shall not, except by leave of the Tribunal, urge or be heard in support of any ground not set forth in the memorandum of appeal; but the Tribunal, in deciding the appeal shall not be confined to the grounds set forth in the memorandum of appeal or taken by leave of the Tribunal under this rule : Provided that the Tribunal shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of being heard on that ground." Rule 27 states:"The respondent, though he may not have appealed, may support the order of the Appellate Assistant Commissioner on any of the grounds decided against him." Rule 28 is to the following effect : "Where the Tribunal is of opinion that the case should be remanded it may remand it to the Appellate Assistant Commissioner or the Income-tax Officer, with such directions as the Tribunal may think fit." In the present case, the subject-matter of the appeal before the Tribunal was the question as to what should be the proper written down value of the buildings, machinery etc. of the assessee for calculating the depreciation allowance under S. 10 (2) (vi) of the Act. It was certainly open to the Department, in the appeal filed by the assessee before the Tribunal, to support the finding of the Appellate Assistant Commissioner with regard to the written down value on any of the grounds decided against it. It was argued on behalf of the appellant that the action of the Tribunal in remanding the case is not strictly justified by the language of Rule 27 or Rule 12.Even assuming that Rules 12 and 27 are not strictly applicable, we are of opinion that the Tribunal has got sufficient power under S. 33 (4) of the Act to entertain the argument of the Department with regard to the application of paragraph 2 of the Taxation Laws Order and remand the case to the Income-tax Officer in the manner it has done. It is necessary to state that Rules 12 and 27 are not exhaustive of the powers of the Appellate Tribunal. The rules are merely procedural in character and do not, in any way, circumscribe or control the power of the Tribunal under S. 33(4) of the Act. We are accordingly of the opinion that the Tribunal had jurisdiction to entertain the argument of the Department in this case and to direct the Income-tax Officer to find whether any depreciation was actually allowed under the Industrial Tax Rules and whether such depreciation should be taken into consideration for the purpose of computing the written down value. | 0[ds]In our opinion there is no justification for this argument. In the first place, no objection was raised before the Tribunal or before the High Court that the department should not have been allowed to raise the question for the first time with regard to the application of paragraph 2 of the Taxation Laws Order. We shall, however, assume in favour of the assessee that the question was implicit in the question actually framed and referred to the High Court. Even upon that assumption we are of opinion that the Tribunal had jurisdiction to permit the question to be raised for the first time in appeal. The powers of the Tribunal in dealing with appeals are expressed in S. 33 (4) of the Act in the widest possible termsIn the present case, the subject-matter of the appeal before the Tribunal was the question as to what should be the proper written down value of the buildings, machinery etc. of the assessee for calculating the depreciation allowance under S. 10 (2) (vi) of the Act. It was certainly open to the Department, in the appeal filed by the assessee before the Tribunal, to support the finding of the Appellate Assistant Commissioner with regard to the written down value on any of the grounds decided against it. It was argued on behalf of the appellant that the action of the Tribunal in remanding the case is not strictly justified by the language of Rule 27 or Rule 12.Even assuming that Rules 12 and 27 are not strictly applicable, we are of opinion that the Tribunal has got sufficient power under S. 33 (4) of the Act to entertain the argument of the Department with regard to the application of paragraph 2 of the Taxation Laws Order and remand the case to the Income-tax Officer in the manner it has done. It is necessary to state that Rules 12 and 27 are not exhaustive of the powers of the Appellate Tribunal. The rules are merely procedural in character and do not, in any way, circumscribe or control the power of the Tribunal under S. 33(4) of the Act. We are accordingly of the opinion that the Tribunal had jurisdiction to entertain the argument of the Department in this case and to direct the Income-tax Officer to find whether any depreciation was actually allowed under the Industrial Tax Rules and whether such depreciation should be taken into consideration for the purpose of computing the written down valueThe word "thereon", of course, restricts the jurisdiction of the Tribunal to ther of the appeal. The words pass such orders as the Tribunal thinks fit" include all the powers (except possibly the power of enhancement) which are conferred upon the Appellate Assistant Commissioner by S. 31 of the Act. Consequently the Tribunal has authority under this Section to direct the Appellate Assistant Commissioner or thex Officer to hold a further enquiry and dispose of the case on the basis of such enquiry. Rule 12 of the Appellate Tribunal Rules, 1946 made under S.A (8) of the Act | 0 | 2,333 | 558 | ### 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:
allowed under the Industrial Tax Rules, or if it was allowed, whether such depreciation was under any law or rules relating to income-tax or super-tax etc., not having been determined, the contention raised by the Department on the basis of paragraph 2 of the Taxation Laws (Part B States) (Removal of Difficulties) Order, 1950, could not be entertained at that stage, and that contention has been accepted by the Tribunal. In these circumstances, our answer to question No. 2 as framed is that Paragraph 2 of the Taxation Laws (Part B States) (Removal of Difficulties) Order, 1950, is a valid provision of law, but it will have application to the present case only if the questions which the Tribunal has asked the Income-tax officer to determine, are determined by the Income-tax Officer in favour of the Department". Civil Appeals Nos. 411 to 413 of 1965: 8. The sole question argued on behalf of the assessee in these appeals is that the Tribunal was not competent to go into the question whether the provisions of paragraph 2 of the Taxation Laws Order were applicable to the present case and the respondent should not have been allowed to raise the contention for the first time before the Tribunal. It was also argued that the Tribunal ought not to have remanded the case to the Income-tax Officer for ascertaining whether any depreciation was allowed under the Industrial Tax Rules and whether such depreciation should be taken into account for the purpose of computing the written down value. In our opinion there is no justification for this argument. In the first place, no objection was raised before the Tribunal or before the High Court that the department should not have been allowed to raise the question for the first time with regard to the application of paragraph 2 of the Taxation Laws Order. We shall, however, assume in favour of the assessee that the question was implicit in the question actually framed and referred to the High Court. Even upon that assumption we are of opinion that the Tribunal had jurisdiction to permit the question to be raised for the first time in appeal. The powers of the Tribunal in dealing with appeals are expressed in S. 33 (4) of the Act in the widest possible terms. Section 33 (3) of the Act states that "An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner" Section 33(4) reads as follows:"4. The Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicate any such orders to the assessee and the Commissioner." The word "thereon", of course, restricts the jurisdiction of the Tribunal to the subject-matter of the appeal. The words pass such orders as the Tribunal thinks fit" include all the powers (except possibly the power of enhancement) which are conferred upon the Appellate Assistant Commissioner by S. 31 of the Act. Consequently the Tribunal has authority under this Section to direct the Appellate Assistant Commissioner or the Income-tax Officer to hold a further enquiry and dispose of the case on the basis of such enquiry. Rule 12 of the Appellate Tribunal Rules, 1946 made under S. 5-A (8) of the Act provides as follows:"The appellant shall not, except by leave of the Tribunal, urge or be heard in support of any ground not set forth in the memorandum of appeal; but the Tribunal, in deciding the appeal shall not be confined to the grounds set forth in the memorandum of appeal or taken by leave of the Tribunal under this rule : Provided that the Tribunal shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of being heard on that ground." Rule 27 states:"The respondent, though he may not have appealed, may support the order of the Appellate Assistant Commissioner on any of the grounds decided against him." Rule 28 is to the following effect : "Where the Tribunal is of opinion that the case should be remanded it may remand it to the Appellate Assistant Commissioner or the Income-tax Officer, with such directions as the Tribunal may think fit." In the present case, the subject-matter of the appeal before the Tribunal was the question as to what should be the proper written down value of the buildings, machinery etc. of the assessee for calculating the depreciation allowance under S. 10 (2) (vi) of the Act. It was certainly open to the Department, in the appeal filed by the assessee before the Tribunal, to support the finding of the Appellate Assistant Commissioner with regard to the written down value on any of the grounds decided against it. It was argued on behalf of the appellant that the action of the Tribunal in remanding the case is not strictly justified by the language of Rule 27 or Rule 12.Even assuming that Rules 12 and 27 are not strictly applicable, we are of opinion that the Tribunal has got sufficient power under S. 33 (4) of the Act to entertain the argument of the Department with regard to the application of paragraph 2 of the Taxation Laws Order and remand the case to the Income-tax Officer in the manner it has done. It is necessary to state that Rules 12 and 27 are not exhaustive of the powers of the Appellate Tribunal. The rules are merely procedural in character and do not, in any way, circumscribe or control the power of the Tribunal under S. 33(4) of the Act. We are accordingly of the opinion that the Tribunal had jurisdiction to entertain the argument of the Department in this case and to direct the Income-tax Officer to find whether any depreciation was actually allowed under the Industrial Tax Rules and whether such depreciation should be taken into consideration for the purpose of computing the written down value.
### Response:
0
### Explanation:
In our opinion there is no justification for this argument. In the first place, no objection was raised before the Tribunal or before the High Court that the department should not have been allowed to raise the question for the first time with regard to the application of paragraph 2 of the Taxation Laws Order. We shall, however, assume in favour of the assessee that the question was implicit in the question actually framed and referred to the High Court. Even upon that assumption we are of opinion that the Tribunal had jurisdiction to permit the question to be raised for the first time in appeal. The powers of the Tribunal in dealing with appeals are expressed in S. 33 (4) of the Act in the widest possible termsIn the present case, the subject-matter of the appeal before the Tribunal was the question as to what should be the proper written down value of the buildings, machinery etc. of the assessee for calculating the depreciation allowance under S. 10 (2) (vi) of the Act. It was certainly open to the Department, in the appeal filed by the assessee before the Tribunal, to support the finding of the Appellate Assistant Commissioner with regard to the written down value on any of the grounds decided against it. It was argued on behalf of the appellant that the action of the Tribunal in remanding the case is not strictly justified by the language of Rule 27 or Rule 12.Even assuming that Rules 12 and 27 are not strictly applicable, we are of opinion that the Tribunal has got sufficient power under S. 33 (4) of the Act to entertain the argument of the Department with regard to the application of paragraph 2 of the Taxation Laws Order and remand the case to the Income-tax Officer in the manner it has done. It is necessary to state that Rules 12 and 27 are not exhaustive of the powers of the Appellate Tribunal. The rules are merely procedural in character and do not, in any way, circumscribe or control the power of the Tribunal under S. 33(4) of the Act. We are accordingly of the opinion that the Tribunal had jurisdiction to entertain the argument of the Department in this case and to direct the Income-tax Officer to find whether any depreciation was actually allowed under the Industrial Tax Rules and whether such depreciation should be taken into consideration for the purpose of computing the written down valueThe word "thereon", of course, restricts the jurisdiction of the Tribunal to ther of the appeal. The words pass such orders as the Tribunal thinks fit" include all the powers (except possibly the power of enhancement) which are conferred upon the Appellate Assistant Commissioner by S. 31 of the Act. Consequently the Tribunal has authority under this Section to direct the Appellate Assistant Commissioner or thex Officer to hold a further enquiry and dispose of the case on the basis of such enquiry. Rule 12 of the Appellate Tribunal Rules, 1946 made under S.A (8) of the Act
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Income-Tax Officer, Madras Vs. Budha Pictures, Madras | to law the demand made by the Income-tax Officer for the sum of Rupees 20,000 was illegal and without jurisdiction.3. The High Court, as we have already mentioned, hold that the Department was not entitled to call upon Budha Pictures Ltd., the respondent, to make good the sum of Rs. 20,000 already paid to Baliah as such payments did not contravene the notice under S. 46 (5-A) dated June 18, 1959. Section 46 (5-A) reads as follows:"(5-A) The Income-tax Officer may at any time or from time to time, by notice in writing (a copy of which shall be forwarded to the assessee at his last address known to the Income-tax Officer) require any person from whom money is due or may become due to the assessee or any person who holds or may subsequently hold money for or on account of the assessee to pay to the Income tax Officer, either forthwith upon the money becoming due or being held or at or within the time specified in the notice (not being before the money becomes due or is held) so much of the money as is sufficient to pay the amount due by the tax-payer in respect of arrears of income-tax and penalty or the whole of the money when it is equal to or less than that amount.The Income-tax Officer may at any time or from time to time amend or revoke any such notice or extend the time for making any payment in pursuance of the notice.Any person making any payment in compliance with a notice under this sub-section shall be deemed to have made the payment under the authority of the assessee and the receipt of the Income-tax Officer shall constitute a good and sufficient discharge of the liability of such person to the assessee to the extent of the amount referred to in the receipt.Any person discharging any liability to the assessee after receipt of the notice referred to in this sub-section shall be personally liable to the Income-tax Officer to the extent of the liability discharged or to the extent of the liability of the assessee for tax and penalties, whichever is less.If the person to whom a notice under this sub-section is sent fails to make payment in pursuance thereof to the Income-tax Officer, further proceedings may be taken by and before the Collector on the footing that the Income-tax Officers notice has the same effect as an attachment by the Collector in exercise of his powers under the proviso to sub-section (2) of Section 46.Where a person to whom a notice under this sub-section is sent objects to it on the ground that the sum demanded or any part thereof is not due to the assessee or that he does not hold any money for or on account of the assessee, then, nothing contained in this section shall be deemed to require such person to pay any such sum or part thereof, as the case may be, to the Income-tax Officer."4. The learned counse1 for the appellant contends that S. 46 (5-A) applies in four sets of circumstances:(1) when money is due from a person to the assessee:(2) when money may become due to the assessee;(3) when a person holds money for an assessee; and(4) when a person may hold money on account of the assessee.He says that there is no reason for cutting down the words in categories (2) and (4); the words are plain and they do not suggest that at the time of notice a relationship, which may result in money being owed or being held on account of the assessee, should subsist. In our view, if the assessee has not subsisting relationship with a person it would be speculative to think that that person may get into relationship with the assessee and start owing money to him or start holding money for him. We can hardly believe that the Legislature framed this sub-section on speculative considerations. It seems to us that the Legislature contemplated a subsisting relationship of which the Income-tax Officer gets information and which could reasonably lead to recovery of arrears. Theoretically it would be possible for an assessee to enter into relationship with almost anybody, say in the town in which he resides. We can hardly imagine that it was expected that the Income-tax Officer would issue notices to all the residents of a locality or a town to pay money in case they begin to hold or owe money to the assessee.5. It seems to us that the High Court was right in holding that what was contemplated is the subsistence of a similar relationship as between a garnishee and the assessee. This construction of the sub-section is strengthened by the last para in S. 46 (5-A).A person to whom the notice has been issued has only to object that the sum demanded or part thereof is not due to the assessee or that he does not hold any money on account of the assessee. He has not to say that he is not likely to owe or to hold money. It seems to us that the expressions "may become due" or "may subsequently hold money" suggest, in the context, a subsisting relationship between the person served with a notice and the assessee; e. g. assessees employer or banker, or debtor, or a person paying annuity to him; they do not suggest a bank with which he has never dealt with, a person he has never lent money to or dealt with, or all persons who may possibly in the future employ an assessee out of job or work.If the contention of the Department were to be accepted, the Income-tax Officer could send a circular letter under S. 46 (5-A) in respect of all defaulters to all possible employers or traders. This would cast enormous burden on person receiving such notices. We cannot sustain a construction which could lead to such results. We agree with the conclusion arrived at by the High Court. | 0[ds]In our view, if the assessee has not subsisting relationship with a person it would be speculative to think that that person may get into relationship with the assessee and start owing money to him or start holding money for him. We can hardly believe that the Legislature framed this sub-section on speculative considerations. It seems to us that the Legislature contemplated a subsisting relationship of which the Income-tax Officer gets information and which could reasonably lead to recovery of arrears. Theoretically it would be possible for an assessee to enter into relationship with almost anybody, say in the town in which he resides. We can hardly imagine that it was expected that the Income-tax Officer would issue notices to all the residents of a locality or a town to pay money in case they begin to hold or owe money to the assessee.5. It seems to us that the High Court was right in holding that what was contemplated is the subsistence of a similar relationship as between a garnishee and the assessee. This construction of the sub-section is strengthened by the last para in S. 46 (5-A).A person to whom the notice has been issued has only to object that the sum demanded or part thereof is not due to the assessee or that he does not hold any money on account of the assessee. He has not to say that he is not likely to owe or to hold money. It seems to us that the expressions "may become due" or "may subsequently hold money" suggest, in the context, a subsisting relationship between the person served with a notice and the assessee; e. g. assessees employer or banker, or debtor, or a person paying annuity to him; they do not suggest a bank with which he has never dealt with, a person he has never lent money to or dealt with, or all persons who may possibly in the future employ an assessee out of job or work.If the contention of the Department were to be accepted, the Income-tax Officer could send a circular letter under S. 46 (5-A) in respect of all defaulters to all possible employers or traders. This would cast enormous burden on person receiving such notices. We cannot sustain a construction which could lead to such results. We agree with the conclusion arrived at by the High Court. | 0 | 2,000 | 432 | ### 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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to law the demand made by the Income-tax Officer for the sum of Rupees 20,000 was illegal and without jurisdiction.3. The High Court, as we have already mentioned, hold that the Department was not entitled to call upon Budha Pictures Ltd., the respondent, to make good the sum of Rs. 20,000 already paid to Baliah as such payments did not contravene the notice under S. 46 (5-A) dated June 18, 1959. Section 46 (5-A) reads as follows:"(5-A) The Income-tax Officer may at any time or from time to time, by notice in writing (a copy of which shall be forwarded to the assessee at his last address known to the Income-tax Officer) require any person from whom money is due or may become due to the assessee or any person who holds or may subsequently hold money for or on account of the assessee to pay to the Income tax Officer, either forthwith upon the money becoming due or being held or at or within the time specified in the notice (not being before the money becomes due or is held) so much of the money as is sufficient to pay the amount due by the tax-payer in respect of arrears of income-tax and penalty or the whole of the money when it is equal to or less than that amount.The Income-tax Officer may at any time or from time to time amend or revoke any such notice or extend the time for making any payment in pursuance of the notice.Any person making any payment in compliance with a notice under this sub-section shall be deemed to have made the payment under the authority of the assessee and the receipt of the Income-tax Officer shall constitute a good and sufficient discharge of the liability of such person to the assessee to the extent of the amount referred to in the receipt.Any person discharging any liability to the assessee after receipt of the notice referred to in this sub-section shall be personally liable to the Income-tax Officer to the extent of the liability discharged or to the extent of the liability of the assessee for tax and penalties, whichever is less.If the person to whom a notice under this sub-section is sent fails to make payment in pursuance thereof to the Income-tax Officer, further proceedings may be taken by and before the Collector on the footing that the Income-tax Officers notice has the same effect as an attachment by the Collector in exercise of his powers under the proviso to sub-section (2) of Section 46.Where a person to whom a notice under this sub-section is sent objects to it on the ground that the sum demanded or any part thereof is not due to the assessee or that he does not hold any money for or on account of the assessee, then, nothing contained in this section shall be deemed to require such person to pay any such sum or part thereof, as the case may be, to the Income-tax Officer."4. The learned counse1 for the appellant contends that S. 46 (5-A) applies in four sets of circumstances:(1) when money is due from a person to the assessee:(2) when money may become due to the assessee;(3) when a person holds money for an assessee; and(4) when a person may hold money on account of the assessee.He says that there is no reason for cutting down the words in categories (2) and (4); the words are plain and they do not suggest that at the time of notice a relationship, which may result in money being owed or being held on account of the assessee, should subsist. In our view, if the assessee has not subsisting relationship with a person it would be speculative to think that that person may get into relationship with the assessee and start owing money to him or start holding money for him. We can hardly believe that the Legislature framed this sub-section on speculative considerations. It seems to us that the Legislature contemplated a subsisting relationship of which the Income-tax Officer gets information and which could reasonably lead to recovery of arrears. Theoretically it would be possible for an assessee to enter into relationship with almost anybody, say in the town in which he resides. We can hardly imagine that it was expected that the Income-tax Officer would issue notices to all the residents of a locality or a town to pay money in case they begin to hold or owe money to the assessee.5. It seems to us that the High Court was right in holding that what was contemplated is the subsistence of a similar relationship as between a garnishee and the assessee. This construction of the sub-section is strengthened by the last para in S. 46 (5-A).A person to whom the notice has been issued has only to object that the sum demanded or part thereof is not due to the assessee or that he does not hold any money on account of the assessee. He has not to say that he is not likely to owe or to hold money. It seems to us that the expressions "may become due" or "may subsequently hold money" suggest, in the context, a subsisting relationship between the person served with a notice and the assessee; e. g. assessees employer or banker, or debtor, or a person paying annuity to him; they do not suggest a bank with which he has never dealt with, a person he has never lent money to or dealt with, or all persons who may possibly in the future employ an assessee out of job or work.If the contention of the Department were to be accepted, the Income-tax Officer could send a circular letter under S. 46 (5-A) in respect of all defaulters to all possible employers or traders. This would cast enormous burden on person receiving such notices. We cannot sustain a construction which could lead to such results. We agree with the conclusion arrived at by the High Court.
### Response:
0
### Explanation:
In our view, if the assessee has not subsisting relationship with a person it would be speculative to think that that person may get into relationship with the assessee and start owing money to him or start holding money for him. We can hardly believe that the Legislature framed this sub-section on speculative considerations. It seems to us that the Legislature contemplated a subsisting relationship of which the Income-tax Officer gets information and which could reasonably lead to recovery of arrears. Theoretically it would be possible for an assessee to enter into relationship with almost anybody, say in the town in which he resides. We can hardly imagine that it was expected that the Income-tax Officer would issue notices to all the residents of a locality or a town to pay money in case they begin to hold or owe money to the assessee.5. It seems to us that the High Court was right in holding that what was contemplated is the subsistence of a similar relationship as between a garnishee and the assessee. This construction of the sub-section is strengthened by the last para in S. 46 (5-A).A person to whom the notice has been issued has only to object that the sum demanded or part thereof is not due to the assessee or that he does not hold any money on account of the assessee. He has not to say that he is not likely to owe or to hold money. It seems to us that the expressions "may become due" or "may subsequently hold money" suggest, in the context, a subsisting relationship between the person served with a notice and the assessee; e. g. assessees employer or banker, or debtor, or a person paying annuity to him; they do not suggest a bank with which he has never dealt with, a person he has never lent money to or dealt with, or all persons who may possibly in the future employ an assessee out of job or work.If the contention of the Department were to be accepted, the Income-tax Officer could send a circular letter under S. 46 (5-A) in respect of all defaulters to all possible employers or traders. This would cast enormous burden on person receiving such notices. We cannot sustain a construction which could lead to such results. We agree with the conclusion arrived at by the High Court.
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GITABAI MARUTI RAUT (DEAD) THROUGH LR. & ORS Vs. PANDURANG MARUTI RAUT (DEAD) THROUGH LRS. & ORS | Ors. v. R. Yellappagouda Patil & Ors. AIR 1959 SC 906 , Surendra Kumar v. Phoolchand (D) through LRs. & Anr. (1996) 2 SCC 491 and Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade & Ors. (2007) 1 SCC 521 to contend that the property purchased by Raghunath was the property from the income of the ancestral property and, therefore, in the said property, the appellants cannot be deprived of their share. The appellants also referred to the statement of Sopan, brother of Raghunath, who had appeared as PW-2. Sopan had deposed that the ancestral property is situated at Lavale and Pirangut and that the property at Pirangut was entered in the name of the elder brother Raghunath. The partition took place between the brothers and a memorandum (Ex 111) was prepared to this effect. 9. The memorandum dated 23.12.1961- Ex-111 has been produced by the appellants before this Court. The said memorandum shows different parts of the land situated in village Pirangut falling to the share of Narayan, Raghunath, Maruti and Sopan. Apart from the share in the land, even the other activities were arranged for and memorandum was prepared. In the cross-examination, Sopan admitted that there was no joint family at Nande but the partition had taken place between the brothers of the property situated at Lavale and Pirangut. He stated that the property situated at Pirangut was standing in the name of his brother Raghunath. 10. The plaintiff Geetabai appeared as PW-1. She deposed that landed property at Pirangut was inherited by them from her father-in-law, Balaji. She has also referred to the memorandum of settlement recorded on 23.12.1961 and that it bears the signature of Raghunath and Sopan (PW-2) and thumb impression of Narayan. In the crossexamination, she stated that the land in the name of her father-in-law was situated at Village Lavale and Pirangut. She further deposed that landed property situated at Pirangut as well as the property at Nande were purchased by her husband. She denied that the property situated at Pirangut was purchased by Raghunath. She also denied the suggestion that property at Village Lavale alone was joint family property. 11. The memorandum of partition was entered on 23.12.1961 when Maruti was alive, but the same was sought to be given effect in the revenue record vide Ex.104, Mutation No. 1274 on 28.6.1970. Such revenue record is in respect of land situated at village Pirangut, wherein, namely, Narayan, Raghunath and Sopan, sons of Balaji and Pandurang Maruti son of fourth brother Maruti, have been allotted separate share of land in the land situated at Village Pirangut. Pandurang had been given share as by that time Maruti had died. Therefore, Pandurang got the property by partition amongst four brothers alone. 12. The High Court has misread the most important evidence led by the appellants i.e., one of the brothers, Sopan (PW-2), who had deposed that the land at village Pirangut was ancestral land. The Mutation No. 1274 itself shows that the land was partitioned amongst the brothers. It was not a gift by Raghunath in favor of Pandurang/defendant no.1, as found by the High Court. The name of Pandurang in respect of share of Maruti came after the death of Maruti in the year 1966 being the eldest male member as Karta of the joint family of Maruti. Pandurang held the property as Karta of the joint family property fallen to the share of Maruti in terms of the settlement arrived on 23.12.1961. The settlement (Ex.111) is with Maruti and not Pandurang as he was alive on that day. Since, when the revenue entry was being recorded in 1970, after Maruti had died, Pandurang represented the estate of Maruti as Karta. In view of the said fact, the findings recorded by the High Court in para 9 are not tenable. 13. In fact, neither Geetabai (PW-1) nor Sopan (PW-2) had been suggested that the property was gifted by Raghunath to Pandurang. Pandurang has not said a word about the partition entered by four brothers on 23.12.1961. In the cross-examination, he admitted that there was a partition between his father and uncle before 1960 but he could not tell the exact year. He could not identify the signatures of his uncle on Ex.111, though he identified the signatures of Sopan (PW-2). He also admitted that he has not raised any objection regarding mutation entry no. 1274. He denied that his father had purchased any land at Pirangut. Though Pandurang has stated that Raghunath has gifted the property to him but no gift deed has been produced on record nor the immovable property could be gifted orally. Therefore, the stand of the Pandurang that the land was gifted to him is untenable. Therefore, the findings recorded by the High Court is without any evidence. 14. The principles of law enunciated in the above judgments are not in dispute. Since the evidence on record including written memorandum of settlement dated 23.12.1961 (Ex.111) and the mutation (Ex.104) show that Pirangut was a joint family property, therefore, the expression partition has been used. There is no evidence that the property at Village Pirangut was gifted to Pandurang by Raghunath, the eldest son of Balaji. There is no evidence that Raghunath was the sole owner or that he acquired the property from his income. The categorical statement of Geetabai, the plaintiff is that her father-in-law was the owner of the property at Pirangut. Even Sopan has also deposed to the same effect. He was examined as the surviving son of Balaji. In the absence of any evidence that Raghunath had the capacity to purchase the property as the documentary evidence in respect of partition of the property situated at Village Pirangut, the findings recorded by the High Court cannot be sustained. 15. The plaintiff and defendants including daughters of Maruti have equal share in the Pirangut and Lavale property in view of the judgment of this Court reported as Vineeta Sharma v. Rakesh Sharma & Ors. (2020) 9 SCC 1 . | 1[ds]Our attention was drawn to the plaint filed by the deceased Geetabai but we do not find any pleadings regarding the property at Nande as purchased from the income of the joint family property. All three Courts have concurrently held that the property at Nande is not a joint ancestral property. We find no reason to interfere with the findings relating to the property situate in Village Nande.9. The memorandum dated 23.12.1961- Ex-111 has been produced by the appellants before this Court. The said memorandum shows different parts of the land situated in village Pirangut falling to the share of Narayan, Raghunath, Maruti and Sopan. Apart from the share in the land, even the other activities were arranged for and memorandum was prepared. In the cross-examination, Sopan admitted that there was no joint family at Nande but the partition had taken place between the brothers of the property situated at Lavale and Pirangut. He stated that the property situated at Pirangut was standing in the name of his brother Raghunath.10. The plaintiff Geetabai appeared as PW-1. She deposed that landed property at Pirangut was inherited by them from her father-in-law, Balaji. She has also referred to the memorandum of settlement recorded on 23.12.1961 and that it bears the signature of Raghunath and Sopan (PW-2) and thumb impression of Narayan. In the crossexamination, she stated that the land in the name of her father-in-law was situated at Village Lavale and Pirangut. She further deposed that landed property situated at Pirangut as well as the property at Nande were purchased by her husband. She denied that the property situated at Pirangut was purchased by Raghunath. She also denied the suggestion that property at Village Lavale alone was joint family property.11. The memorandum of partition was entered on 23.12.1961 when Maruti was alive, but the same was sought to be given effect in the revenue record vide Ex.104, Mutation No. 1274 on 28.6.1970. Such revenue record is in respect of land situated at village Pirangut, wherein, namely, Narayan, Raghunath and Sopan, sons of Balaji and Pandurang Maruti son of fourth brother Maruti, have been allotted separate share of land in the land situated at Village Pirangut. Pandurang had been given share as by that time Maruti had died. Therefore, Pandurang got the property by partition amongst four brothers alone.12. The High Court has misread the most important evidence led by the appellants i.e., one of the brothers, Sopan (PW-2), who had deposed that the land at village Pirangut was ancestral land. The Mutation No. 1274 itself shows that the land was partitioned amongst the brothers. It was not a gift by Raghunath in favor of Pandurang/defendant no.1, as found by the High Court. The name of Pandurang in respect of share of Maruti came after the death of Maruti in the year 1966 being the eldest male member as Karta of the joint family of Maruti. Pandurang held the property as Karta of the joint family property fallen to the share of Maruti in terms of the settlement arrived on 23.12.1961. The settlement (Ex.111) is with Maruti and not Pandurang as he was alive on that day. Since, when the revenue entry was being recorded in 1970, after Maruti had died, Pandurang represented the estate of Maruti as Karta. In view of the said fact, the findings recorded by the High Court in para 9 are not tenable.13. In fact, neither Geetabai (PW-1) nor Sopan (PW-2) had been suggested that the property was gifted by Raghunath to Pandurang. Pandurang has not said a word about the partition entered by four brothers on 23.12.1961. In the cross-examination, he admitted that there was a partition between his father and uncle before 1960 but he could not tell the exact year. He could not identify the signatures of his uncle on Ex.111, though he identified the signatures of Sopan (PW-2). He also admitted that he has not raised any objection regarding mutation entry no. 1274. He denied that his father had purchased any land at Pirangut. Though Pandurang has stated that Raghunath has gifted the property to him but no gift deed has been produced on record nor the immovable property could be gifted orally. Therefore, the stand of the Pandurang that the land was gifted to him is untenable. Therefore, the findings recorded by the High Court is without any evidence.14. The principles of law enunciated in the above judgments are not in dispute. Since the evidence on record including written memorandum of settlement dated 23.12.1961 (Ex.111) and the mutation (Ex.104) show that Pirangut was a joint family property, therefore, the expression partition has been used. There is no evidence that the property at Village Pirangut was gifted to Pandurang by Raghunath, the eldest son of Balaji. There is no evidence that Raghunath was the sole owner or that he acquired the property from his income. The categorical statement of Geetabai, the plaintiff is that her father-in-law was the owner of the property at Pirangut. Even Sopan has also deposed to the same effect. He was examined as the surviving son of Balaji. In the absence of any evidence that Raghunath had the capacity to purchase the property as the documentary evidence in respect of partition of the property situated at Village Pirangut, the findings recorded by the High Court cannot be sustained.15. The plaintiff and defendants including daughters of Maruti have equal share in the Pirangut and Lavale property in view of the judgment of this Court reported as Vineeta Sharma v. Rakesh Sharma & Ors. (2020) 9 SCC 1 . | 1 | 1,965 | 1,031 | ### 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:
Ors. v. R. Yellappagouda Patil & Ors. AIR 1959 SC 906 , Surendra Kumar v. Phoolchand (D) through LRs. & Anr. (1996) 2 SCC 491 and Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade & Ors. (2007) 1 SCC 521 to contend that the property purchased by Raghunath was the property from the income of the ancestral property and, therefore, in the said property, the appellants cannot be deprived of their share. The appellants also referred to the statement of Sopan, brother of Raghunath, who had appeared as PW-2. Sopan had deposed that the ancestral property is situated at Lavale and Pirangut and that the property at Pirangut was entered in the name of the elder brother Raghunath. The partition took place between the brothers and a memorandum (Ex 111) was prepared to this effect. 9. The memorandum dated 23.12.1961- Ex-111 has been produced by the appellants before this Court. The said memorandum shows different parts of the land situated in village Pirangut falling to the share of Narayan, Raghunath, Maruti and Sopan. Apart from the share in the land, even the other activities were arranged for and memorandum was prepared. In the cross-examination, Sopan admitted that there was no joint family at Nande but the partition had taken place between the brothers of the property situated at Lavale and Pirangut. He stated that the property situated at Pirangut was standing in the name of his brother Raghunath. 10. The plaintiff Geetabai appeared as PW-1. She deposed that landed property at Pirangut was inherited by them from her father-in-law, Balaji. She has also referred to the memorandum of settlement recorded on 23.12.1961 and that it bears the signature of Raghunath and Sopan (PW-2) and thumb impression of Narayan. In the crossexamination, she stated that the land in the name of her father-in-law was situated at Village Lavale and Pirangut. She further deposed that landed property situated at Pirangut as well as the property at Nande were purchased by her husband. She denied that the property situated at Pirangut was purchased by Raghunath. She also denied the suggestion that property at Village Lavale alone was joint family property. 11. The memorandum of partition was entered on 23.12.1961 when Maruti was alive, but the same was sought to be given effect in the revenue record vide Ex.104, Mutation No. 1274 on 28.6.1970. Such revenue record is in respect of land situated at village Pirangut, wherein, namely, Narayan, Raghunath and Sopan, sons of Balaji and Pandurang Maruti son of fourth brother Maruti, have been allotted separate share of land in the land situated at Village Pirangut. Pandurang had been given share as by that time Maruti had died. Therefore, Pandurang got the property by partition amongst four brothers alone. 12. The High Court has misread the most important evidence led by the appellants i.e., one of the brothers, Sopan (PW-2), who had deposed that the land at village Pirangut was ancestral land. The Mutation No. 1274 itself shows that the land was partitioned amongst the brothers. It was not a gift by Raghunath in favor of Pandurang/defendant no.1, as found by the High Court. The name of Pandurang in respect of share of Maruti came after the death of Maruti in the year 1966 being the eldest male member as Karta of the joint family of Maruti. Pandurang held the property as Karta of the joint family property fallen to the share of Maruti in terms of the settlement arrived on 23.12.1961. The settlement (Ex.111) is with Maruti and not Pandurang as he was alive on that day. Since, when the revenue entry was being recorded in 1970, after Maruti had died, Pandurang represented the estate of Maruti as Karta. In view of the said fact, the findings recorded by the High Court in para 9 are not tenable. 13. In fact, neither Geetabai (PW-1) nor Sopan (PW-2) had been suggested that the property was gifted by Raghunath to Pandurang. Pandurang has not said a word about the partition entered by four brothers on 23.12.1961. In the cross-examination, he admitted that there was a partition between his father and uncle before 1960 but he could not tell the exact year. He could not identify the signatures of his uncle on Ex.111, though he identified the signatures of Sopan (PW-2). He also admitted that he has not raised any objection regarding mutation entry no. 1274. He denied that his father had purchased any land at Pirangut. Though Pandurang has stated that Raghunath has gifted the property to him but no gift deed has been produced on record nor the immovable property could be gifted orally. Therefore, the stand of the Pandurang that the land was gifted to him is untenable. Therefore, the findings recorded by the High Court is without any evidence. 14. The principles of law enunciated in the above judgments are not in dispute. Since the evidence on record including written memorandum of settlement dated 23.12.1961 (Ex.111) and the mutation (Ex.104) show that Pirangut was a joint family property, therefore, the expression partition has been used. There is no evidence that the property at Village Pirangut was gifted to Pandurang by Raghunath, the eldest son of Balaji. There is no evidence that Raghunath was the sole owner or that he acquired the property from his income. The categorical statement of Geetabai, the plaintiff is that her father-in-law was the owner of the property at Pirangut. Even Sopan has also deposed to the same effect. He was examined as the surviving son of Balaji. In the absence of any evidence that Raghunath had the capacity to purchase the property as the documentary evidence in respect of partition of the property situated at Village Pirangut, the findings recorded by the High Court cannot be sustained. 15. The plaintiff and defendants including daughters of Maruti have equal share in the Pirangut and Lavale property in view of the judgment of this Court reported as Vineeta Sharma v. Rakesh Sharma & Ors. (2020) 9 SCC 1 .
### Response:
1
### Explanation:
Our attention was drawn to the plaint filed by the deceased Geetabai but we do not find any pleadings regarding the property at Nande as purchased from the income of the joint family property. All three Courts have concurrently held that the property at Nande is not a joint ancestral property. We find no reason to interfere with the findings relating to the property situate in Village Nande.9. The memorandum dated 23.12.1961- Ex-111 has been produced by the appellants before this Court. The said memorandum shows different parts of the land situated in village Pirangut falling to the share of Narayan, Raghunath, Maruti and Sopan. Apart from the share in the land, even the other activities were arranged for and memorandum was prepared. In the cross-examination, Sopan admitted that there was no joint family at Nande but the partition had taken place between the brothers of the property situated at Lavale and Pirangut. He stated that the property situated at Pirangut was standing in the name of his brother Raghunath.10. The plaintiff Geetabai appeared as PW-1. She deposed that landed property at Pirangut was inherited by them from her father-in-law, Balaji. She has also referred to the memorandum of settlement recorded on 23.12.1961 and that it bears the signature of Raghunath and Sopan (PW-2) and thumb impression of Narayan. In the crossexamination, she stated that the land in the name of her father-in-law was situated at Village Lavale and Pirangut. She further deposed that landed property situated at Pirangut as well as the property at Nande were purchased by her husband. She denied that the property situated at Pirangut was purchased by Raghunath. She also denied the suggestion that property at Village Lavale alone was joint family property.11. The memorandum of partition was entered on 23.12.1961 when Maruti was alive, but the same was sought to be given effect in the revenue record vide Ex.104, Mutation No. 1274 on 28.6.1970. Such revenue record is in respect of land situated at village Pirangut, wherein, namely, Narayan, Raghunath and Sopan, sons of Balaji and Pandurang Maruti son of fourth brother Maruti, have been allotted separate share of land in the land situated at Village Pirangut. Pandurang had been given share as by that time Maruti had died. Therefore, Pandurang got the property by partition amongst four brothers alone.12. The High Court has misread the most important evidence led by the appellants i.e., one of the brothers, Sopan (PW-2), who had deposed that the land at village Pirangut was ancestral land. The Mutation No. 1274 itself shows that the land was partitioned amongst the brothers. It was not a gift by Raghunath in favor of Pandurang/defendant no.1, as found by the High Court. The name of Pandurang in respect of share of Maruti came after the death of Maruti in the year 1966 being the eldest male member as Karta of the joint family of Maruti. Pandurang held the property as Karta of the joint family property fallen to the share of Maruti in terms of the settlement arrived on 23.12.1961. The settlement (Ex.111) is with Maruti and not Pandurang as he was alive on that day. Since, when the revenue entry was being recorded in 1970, after Maruti had died, Pandurang represented the estate of Maruti as Karta. In view of the said fact, the findings recorded by the High Court in para 9 are not tenable.13. In fact, neither Geetabai (PW-1) nor Sopan (PW-2) had been suggested that the property was gifted by Raghunath to Pandurang. Pandurang has not said a word about the partition entered by four brothers on 23.12.1961. In the cross-examination, he admitted that there was a partition between his father and uncle before 1960 but he could not tell the exact year. He could not identify the signatures of his uncle on Ex.111, though he identified the signatures of Sopan (PW-2). He also admitted that he has not raised any objection regarding mutation entry no. 1274. He denied that his father had purchased any land at Pirangut. Though Pandurang has stated that Raghunath has gifted the property to him but no gift deed has been produced on record nor the immovable property could be gifted orally. Therefore, the stand of the Pandurang that the land was gifted to him is untenable. Therefore, the findings recorded by the High Court is without any evidence.14. The principles of law enunciated in the above judgments are not in dispute. Since the evidence on record including written memorandum of settlement dated 23.12.1961 (Ex.111) and the mutation (Ex.104) show that Pirangut was a joint family property, therefore, the expression partition has been used. There is no evidence that the property at Village Pirangut was gifted to Pandurang by Raghunath, the eldest son of Balaji. There is no evidence that Raghunath was the sole owner or that he acquired the property from his income. The categorical statement of Geetabai, the plaintiff is that her father-in-law was the owner of the property at Pirangut. Even Sopan has also deposed to the same effect. He was examined as the surviving son of Balaji. In the absence of any evidence that Raghunath had the capacity to purchase the property as the documentary evidence in respect of partition of the property situated at Village Pirangut, the findings recorded by the High Court cannot be sustained.15. The plaintiff and defendants including daughters of Maruti have equal share in the Pirangut and Lavale property in view of the judgment of this Court reported as Vineeta Sharma v. Rakesh Sharma & Ors. (2020) 9 SCC 1 .
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M/S. Lipton Limited And Another Vs. Their Employees | of the Union is that the wage structure of the Indian branch is top-heavy, in the sense that the higher administrative officers get a salary which is out of all proportion to the wage scale of the employees with whom we are now concerned. It is further contended that the high salaries paid to the superior Executive show..(1), that the wage structure of the lower employees requires revision and (2) that the financial capacity of the Indian branch is not as negligible as the appellant wants to make out.We think, however, that it is not the duty of a Labour Tribunal or Court to dictate to an industrial concern what salaries should be paid to superior executive officers who are not workmen within the meaning of the Industrial Disputes Act, 1947. We have pointed out, however, in the Express Newspapers. Ltd., AIR 1958 SC 578 that"the possibility of tightening up the organisation so that the industry could pay higher wages without difficulty and the possibility of increase in the efficiency of the lowest paid workers resulting in increase in production must be considered in conjunction with the elasticity of demand for the product-no doubt against the ultimate background that the burden of the increased rate should not be such as to drive the employer out of business." This is an aspect of the matter which the Tribunals below had considered and the Industrial Tribunal had particularly said that the increase in the wage structure was not such as would drive the Lipton, Ltd., out of its Indian business. 29. Our attention has been drawn to the financial implications of the award and it has been pointed out that the total annual cost to the company of the increase in the wage structure of the employees in the Delhi office would be in the neighbourhood of Rs. 49,721 per year; on an all-India basis it would be in the neighbourhood of Rs. 2,71,000 and odd. Having regard to the evidence which Samuel gave it cannot be said that the burden of the increased rate was such as would be beyond the financial resources of the Lipton, Ltd. on its trading results in India or was such as would drive the Lipton, Ltd. out of India. Even on the basis of all the reliefs granted by the award, the total cost to the company for the Delhi office would be in the neighbourhood of Rs. 1,15,000 and on an all-India basis Rs. 6,34,000. We have said earlier that the award was not an all-India award, and so far as the fixation of wages is concerned, it must be judged on the principle of industry-cum-region. So judged, we do not think that the increase is beyond the financial resources of the Lipton, Ltd., as disclosed by its trading results in India. 30. On behalf of the appellant, it has been submitted that one of the tests for measuring the capacity of the industry to pay the increased wage is, amongst others, the selling price of the product and it has been pointed out that by reason of the imposition in 1953 of an excise duty of three annas per pound of packet tea, there is serious competition from those who sell tea in loose form and any further increase in price will give rise to consumers resistance and ultimately result in lesser sale and lesser profits. In our opinion, the Industrial Tribunal rightly pointed out that the moderate increase in the wage scale proposed by it would only be a very small fraction of the overall cost of production of a packet of tea and would have very little repercussion in its price. 31. Lastly, our attention was drawn to an award of the Special Industrial Tribunal, Madras, dated October 15, 1956, between the management of the Lipton, Ltd., Madras and its workers employed in Madras where on more or less similar facts the Industrial Tribunal repelled the argument on behalf of the workmen that the global financial position of the Lipton, Ltd., should be taken into account in considering the capacity of the company to pay higher salaries and dearness allowance, and it was held that the Lipton, Ltd., could not be burdened with any additional liability and the employees must wait for better days. That award is not the subject of the present appeals and we consider it unnecessary, and indeed inadvisable, to make any pronouncement as to the correctness or otherwise of that award. 32. The only other point which requires consideration is the question of the date from which the new scales of pay should come into effect. The Industrial Tribunal fixed January 1, 1954, on the ground that the Union had presented its charter of demands to the appellant for the first time towards the end of December 1953. We are unable to agree with the Tribunals below that the circumstance that a charter of demands was presented in December 1953 is a good ground for giving retrospective effect to the new scales of pay. The charter of demands presented by the Union consisted of 20 items and in the matter of the wage scale what the Union demanded was in some cases more than 50 to 75 per cent. increase on the existing scales of pay. Obviously, the demands were exorbitant and the management was justified in refusing to accept the demands in toto. We are, therefore, unable to agree that retrospective effect should be given to the new scales of pay from January 1, 1954. The award was made on August 18, 1955, and it was published on October 6, 1955. We think that it will be more just to bring the new scales of pay with effect from November 1, 1955, and we direct accordingly. The other directions given by the Industrial Tribunal to bring the present employees into the new scales of pay will stand subject to the necessary modification that instead of January 1, 1954 the relevant date should be November 1, 1955. | 0[ds]24. We do not think that it is necessary to decide in the present case whether the Tribunals below were right in having regard to the global resources of the Lipton, Ltd. in the matter of the revision of the wage-structure; because we consider that on an application of the principle of industry-cum-region, the revision of the wage-structure made by the Tribunals below cannot be said to be unjustified on the financial resources of the Lipton, Ltd. as disclosed by its trading results in India. The learned Attorney General has referred to certain larger considerations he has suggested that if the global resources of a company like the Lipton, Ltd. which operates in several countries are taken into consideration in determining the wage structure, it may result in disparity of wages in different regions giving rise to industrial unrest and it may so have the effect of stoping new industries in this country and thereby increase unemployment. These are matters which may require serious consideration in a more appropriate case; but in the present case we may examine the problem from the narrower point of view, namely, the trading results in India of the Lipton, Ltd32. The only other point which requires consideration is the question of the date from which the new scales of pay should come into effect. The Industrial Tribunal fixed January 1, 1954, on the ground that the Union had presented its charter of demands to the appellant for the first time towards the end of December 1953. We are unable to agree with the Tribunals below that the circumstance that a charter of demands was presented in December 1953 is a good ground for giving retrospective effect to the new scales of pay. The charter of demands presented by the Union consisted of 20 items and in the matter of the wage scale what the Union demanded was in some cases more than 50 to 75 per cent. increase on the existing scales of pay. Obviously, the demands were exorbitant and the management was justified in refusing to accept the demands in toto. We are, therefore, unable to agree that retrospective effect should be given to the new scales of pay from January 1, 1954. The award was made on August 18, 1955, and it was published on October 6, 1955. We think that it will be more just to bring the new scales of pay with effect from November 1, 1955, and we direct accordingly. The other directions given by the Industrial Tribunal to bring the present employees into the new scales of pay will stand subject to the necessary modification that instead of January 1, 1954 the relevant date should be November 1, 1955. | 0 | 10,858 | 493 | ### Instruction:
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of the Union is that the wage structure of the Indian branch is top-heavy, in the sense that the higher administrative officers get a salary which is out of all proportion to the wage scale of the employees with whom we are now concerned. It is further contended that the high salaries paid to the superior Executive show..(1), that the wage structure of the lower employees requires revision and (2) that the financial capacity of the Indian branch is not as negligible as the appellant wants to make out.We think, however, that it is not the duty of a Labour Tribunal or Court to dictate to an industrial concern what salaries should be paid to superior executive officers who are not workmen within the meaning of the Industrial Disputes Act, 1947. We have pointed out, however, in the Express Newspapers. Ltd., AIR 1958 SC 578 that"the possibility of tightening up the organisation so that the industry could pay higher wages without difficulty and the possibility of increase in the efficiency of the lowest paid workers resulting in increase in production must be considered in conjunction with the elasticity of demand for the product-no doubt against the ultimate background that the burden of the increased rate should not be such as to drive the employer out of business." This is an aspect of the matter which the Tribunals below had considered and the Industrial Tribunal had particularly said that the increase in the wage structure was not such as would drive the Lipton, Ltd., out of its Indian business. 29. Our attention has been drawn to the financial implications of the award and it has been pointed out that the total annual cost to the company of the increase in the wage structure of the employees in the Delhi office would be in the neighbourhood of Rs. 49,721 per year; on an all-India basis it would be in the neighbourhood of Rs. 2,71,000 and odd. Having regard to the evidence which Samuel gave it cannot be said that the burden of the increased rate was such as would be beyond the financial resources of the Lipton, Ltd. on its trading results in India or was such as would drive the Lipton, Ltd. out of India. Even on the basis of all the reliefs granted by the award, the total cost to the company for the Delhi office would be in the neighbourhood of Rs. 1,15,000 and on an all-India basis Rs. 6,34,000. We have said earlier that the award was not an all-India award, and so far as the fixation of wages is concerned, it must be judged on the principle of industry-cum-region. So judged, we do not think that the increase is beyond the financial resources of the Lipton, Ltd., as disclosed by its trading results in India. 30. On behalf of the appellant, it has been submitted that one of the tests for measuring the capacity of the industry to pay the increased wage is, amongst others, the selling price of the product and it has been pointed out that by reason of the imposition in 1953 of an excise duty of three annas per pound of packet tea, there is serious competition from those who sell tea in loose form and any further increase in price will give rise to consumers resistance and ultimately result in lesser sale and lesser profits. In our opinion, the Industrial Tribunal rightly pointed out that the moderate increase in the wage scale proposed by it would only be a very small fraction of the overall cost of production of a packet of tea and would have very little repercussion in its price. 31. Lastly, our attention was drawn to an award of the Special Industrial Tribunal, Madras, dated October 15, 1956, between the management of the Lipton, Ltd., Madras and its workers employed in Madras where on more or less similar facts the Industrial Tribunal repelled the argument on behalf of the workmen that the global financial position of the Lipton, Ltd., should be taken into account in considering the capacity of the company to pay higher salaries and dearness allowance, and it was held that the Lipton, Ltd., could not be burdened with any additional liability and the employees must wait for better days. That award is not the subject of the present appeals and we consider it unnecessary, and indeed inadvisable, to make any pronouncement as to the correctness or otherwise of that award. 32. The only other point which requires consideration is the question of the date from which the new scales of pay should come into effect. The Industrial Tribunal fixed January 1, 1954, on the ground that the Union had presented its charter of demands to the appellant for the first time towards the end of December 1953. We are unable to agree with the Tribunals below that the circumstance that a charter of demands was presented in December 1953 is a good ground for giving retrospective effect to the new scales of pay. The charter of demands presented by the Union consisted of 20 items and in the matter of the wage scale what the Union demanded was in some cases more than 50 to 75 per cent. increase on the existing scales of pay. Obviously, the demands were exorbitant and the management was justified in refusing to accept the demands in toto. We are, therefore, unable to agree that retrospective effect should be given to the new scales of pay from January 1, 1954. The award was made on August 18, 1955, and it was published on October 6, 1955. We think that it will be more just to bring the new scales of pay with effect from November 1, 1955, and we direct accordingly. The other directions given by the Industrial Tribunal to bring the present employees into the new scales of pay will stand subject to the necessary modification that instead of January 1, 1954 the relevant date should be November 1, 1955.
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### Explanation:
24. We do not think that it is necessary to decide in the present case whether the Tribunals below were right in having regard to the global resources of the Lipton, Ltd. in the matter of the revision of the wage-structure; because we consider that on an application of the principle of industry-cum-region, the revision of the wage-structure made by the Tribunals below cannot be said to be unjustified on the financial resources of the Lipton, Ltd. as disclosed by its trading results in India. The learned Attorney General has referred to certain larger considerations he has suggested that if the global resources of a company like the Lipton, Ltd. which operates in several countries are taken into consideration in determining the wage structure, it may result in disparity of wages in different regions giving rise to industrial unrest and it may so have the effect of stoping new industries in this country and thereby increase unemployment. These are matters which may require serious consideration in a more appropriate case; but in the present case we may examine the problem from the narrower point of view, namely, the trading results in India of the Lipton, Ltd32. The only other point which requires consideration is the question of the date from which the new scales of pay should come into effect. The Industrial Tribunal fixed January 1, 1954, on the ground that the Union had presented its charter of demands to the appellant for the first time towards the end of December 1953. We are unable to agree with the Tribunals below that the circumstance that a charter of demands was presented in December 1953 is a good ground for giving retrospective effect to the new scales of pay. The charter of demands presented by the Union consisted of 20 items and in the matter of the wage scale what the Union demanded was in some cases more than 50 to 75 per cent. increase on the existing scales of pay. Obviously, the demands were exorbitant and the management was justified in refusing to accept the demands in toto. We are, therefore, unable to agree that retrospective effect should be given to the new scales of pay from January 1, 1954. The award was made on August 18, 1955, and it was published on October 6, 1955. We think that it will be more just to bring the new scales of pay with effect from November 1, 1955, and we direct accordingly. The other directions given by the Industrial Tribunal to bring the present employees into the new scales of pay will stand subject to the necessary modification that instead of January 1, 1954 the relevant date should be November 1, 1955.
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The Indian Hume Pipe Co. Ltd Vs. The State Of Rajasthan And Ors. Finance Department Secretary To Government Of Rajasthan | further that such a contract was treated as not divisible. It is for this reason in BSNL and Larsen and Toubro cases, this Court specifically pointed out that Kame case would not provide an answer to the issue at hand. On the contrary, the legal position stands settled by the Constitution Bench of this Court in Kone Elevator India (P) Ltd. v. State of T.N. Following observations in that case are apt for this purpose: (SCC p. 31, para 44) ?44. On the basis of the aforesaid elucidation, it has been deduced that a transfer of property in goods under clause (29-A)(b) of Article 366 is deemed to be a sale of goods involved in the execution of a works contract by the person making the transfer and the purchase of those goods by the person to whom such transfer is made. One thing is significant to note that in Larsen and Toubro, it has been stated that after the constitutional amendment, the narrow meaning given to the term ‘works contract? in Gannon Dunkerley (1) no longer survives at present. It has been observed in the said case that: (Larsen and Toubro case, SCC p. 750, para 72) ‘72. … even if in a contract, besides the obligations of supply of goods and materials and performance of labour and services, some additional obligations are imposed, such contract does not cease to be works contract, [for] the additional obligations in the contract would not alter the nature of the contract so long as the contract provides for a contract for works and satisfies the primary description of works contract.? It has been further held that: (Larsen and Toubro case , SCC p. 750, para 72) ‘72. … Once the characteristics or elements of works contract are satisfied in a contract then irrespective of additional obligations, such contract would be covered by the term ?works contract? [because] nothing in Article 366(29-A)(b) limits the term ?works contract? to contract for labour and service only.?? 19) The history of legislative and constitutional amendment pertaining to works contract is well known, which has been stated and restated by this Court in number of cases. The entire position is summarised in Pro Lab case as well and, therefore, it is not necessary to burden this judgment by repeating the same. Purpose would be served by reproducing paragraph 20 of the said judgment wherein the legal position is summarised as follows: ?20. To sum up, it follows from the reading of the aforesaid judgment in Larsen and Toubro case that after insertion of clause (29-A) in Article 366, the works contract which was indivisible one by legal fiction, altered into a contract, which is permitted to be bifurcated into two: one for ?sale of goods? and the other for ?services?, thereby making goods component of the contract exigible to sales tax. Further, while going into this exercise of divisibility, dominant intention behind such a contract, namely, whether it was for sale of goods or for services, is rendered otiose or immaterial. It follows, as a sequitur, that by virtue of clause (29-A) of Article 366, the State Legislature is now empowered to segregate the goods part of the works contract and impose sales tax thereupon. It may be noted that Entry 54 of List II of Schedule VII to the Constitution of India empowers the State Legislature to enact a law taxing sale of goods. Sales tax, being a subject-matter of the State List, the State Legislature has the competency to legislate over the subject.? 20) It clearly follows from the above that by virtue of the Forty Sixth Amendment to the Constitution, a single and indivisible contract is now brought on par with a contract containing two separate agreements. It has also now become a settled position in law that the State Governments have power to levy sales tax on value of material in execution of the works contract. This position is brought about by creating friction whereby the transfer of moveable property in a works contract is deemed to be sale, even though it may not be well within the meaning of Sale of Goods Act. In Larsen and Toubro case it was further held that the value of gods which can constitute a measure of levy of the tax has to be the value of goods at the time of incorporation of the gods in the works even though property in goods passes later. Taxing the sale of goods element in a works contract is permissible even after incorporation of gods, provided tax is directed to the value of goods at the time of incorporation and does not purport to tax the transfer of immovable property (refer to paragraph 124). 21) In the present case, the assessing authority, after scrutinising the agreement in question between the assessee and the State Government, returned a finding of fact that manufacture and supply of PSC pipes, jointing material specials, valves, anchor blocks, etc. do not fall within the scopes of buildings, bridges, dams, roads and canals. It was also held that the agreement was clearly in two parts, namely, (i) sale and supply of PSC pipes, jointing material specials, valves, anchor blocks, etc. and (ii) the remaining part being supply of labour and services. These findings are upheld not only by the appellate authority but also by the Single Judge of the High Court as well as the Division Bench of the High Court. It may also be mentioned at this stage that the assessee has, in fact, admitted that it had no grievance against the finding that supply of pipes was nothing but the sale of pipes involved in the execution of the contracts and, therefore, it was excisable to sales tax. In view of the findings recorded by the authorities below, this element of sale of goods shall apply to jointing material specials, valves, anchor blocks, etc. as well. Thus, we are unable to find any fault with the impugned judgment of the High Court. | 0[ds]7) We may mention that the State Government also issued notification dated March 29, 2001 wherein laying of pipeline with material has been categorized as Works contract and because of this the assessee?s work, after the said notification, is considered as Works contract and has been granted exemption from that date. We are, thus, concerned with the execution of this Works contract prior to the yearIn the first instance, it may be mentioned that the High Court has examined the nature of contract in question and has come to the conclusion that as per the terms and conditions thereof, substantial part of the value of the contract pertained to the cost of PSC pipes, joining material specials, valves, etc. which were manufactured by the assessee in its factory at Kekri and were not supplied to the State Government. The High Court, thus, affirmed the findings of the authorities below on this aspect and concluded that the findings with regard to sale of pipes involved in the works contract are findings of facts which did not require anyWe are inclined to agree with the aforesaid approach of the High Court, namely, when it is found on facts that the works contract executed by the assessee is a divisible contract, the argument of the assessee that it is to be treated as one single and composite contract needs to be rejected on the facts of this case. On these facts, we are also of the opinion that Kone Elevator India Private Limited is notIn the instant case, there is no dispute that the contract in question was a works contract. The issue is altogether different, namely, that of divisibility. It may be mentioned that before Article 366(29A) of the Constitution was amended with effect from March 01, 1983, the test applicable was ‘dominant nature test? or ‘degree of intention? or ‘overwhelming component test? or ‘degree of labour and serviceIt clearly follows from the above that by virtue of the Forty Sixth Amendment to the Constitution, a single and indivisible contract is now brought on par with a contract containing two separate agreements. It has also now become a settled position in law that the State Governments have power to levy sales tax on value of material in execution of the works contract. This position is brought about by creating friction whereby the transfer of moveable property in a works contract is deemed to be sale, even though it may not be well within the meaning of Sale of GoodsIn the present case, the assessing authority, after scrutinising the agreement in question between the assessee and the State Government, returned a finding of fact that manufacture and supply of PSC pipes, jointing material specials, valves, anchor blocks, etc. do not fall within the scopes of buildings, bridges, dams, roads and canals. It was also held that the agreement was clearly in two parts, namely, (i) sale and supply of PSC pipes, jointing material specials, valves, anchor blocks, etc. and (ii) the remaining part being supply of labour and services. These findings are upheld not only by the appellate authority but also by the Single Judge of the High Court as well as the Division Bench of the High Court. It may also be mentioned at this stage that the assessee has, in fact, admitted that it had no grievance against the finding that supply of pipes was nothing but the sale of pipes involved in the execution of the contracts and, therefore, it was excisable to sales tax. In view of the findings recorded by the authorities below, this element of sale of goods shall apply to jointing material specials, valves, anchor blocks, etc. as well. Thus, we are unable to find any fault with the impugned judgment of the High Court. | 0 | 4,362 | 715 | ### Instruction:
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further that such a contract was treated as not divisible. It is for this reason in BSNL and Larsen and Toubro cases, this Court specifically pointed out that Kame case would not provide an answer to the issue at hand. On the contrary, the legal position stands settled by the Constitution Bench of this Court in Kone Elevator India (P) Ltd. v. State of T.N. Following observations in that case are apt for this purpose: (SCC p. 31, para 44) ?44. On the basis of the aforesaid elucidation, it has been deduced that a transfer of property in goods under clause (29-A)(b) of Article 366 is deemed to be a sale of goods involved in the execution of a works contract by the person making the transfer and the purchase of those goods by the person to whom such transfer is made. One thing is significant to note that in Larsen and Toubro, it has been stated that after the constitutional amendment, the narrow meaning given to the term ‘works contract? in Gannon Dunkerley (1) no longer survives at present. It has been observed in the said case that: (Larsen and Toubro case, SCC p. 750, para 72) ‘72. … even if in a contract, besides the obligations of supply of goods and materials and performance of labour and services, some additional obligations are imposed, such contract does not cease to be works contract, [for] the additional obligations in the contract would not alter the nature of the contract so long as the contract provides for a contract for works and satisfies the primary description of works contract.? It has been further held that: (Larsen and Toubro case , SCC p. 750, para 72) ‘72. … Once the characteristics or elements of works contract are satisfied in a contract then irrespective of additional obligations, such contract would be covered by the term ?works contract? [because] nothing in Article 366(29-A)(b) limits the term ?works contract? to contract for labour and service only.?? 19) The history of legislative and constitutional amendment pertaining to works contract is well known, which has been stated and restated by this Court in number of cases. The entire position is summarised in Pro Lab case as well and, therefore, it is not necessary to burden this judgment by repeating the same. Purpose would be served by reproducing paragraph 20 of the said judgment wherein the legal position is summarised as follows: ?20. To sum up, it follows from the reading of the aforesaid judgment in Larsen and Toubro case that after insertion of clause (29-A) in Article 366, the works contract which was indivisible one by legal fiction, altered into a contract, which is permitted to be bifurcated into two: one for ?sale of goods? and the other for ?services?, thereby making goods component of the contract exigible to sales tax. Further, while going into this exercise of divisibility, dominant intention behind such a contract, namely, whether it was for sale of goods or for services, is rendered otiose or immaterial. It follows, as a sequitur, that by virtue of clause (29-A) of Article 366, the State Legislature is now empowered to segregate the goods part of the works contract and impose sales tax thereupon. It may be noted that Entry 54 of List II of Schedule VII to the Constitution of India empowers the State Legislature to enact a law taxing sale of goods. Sales tax, being a subject-matter of the State List, the State Legislature has the competency to legislate over the subject.? 20) It clearly follows from the above that by virtue of the Forty Sixth Amendment to the Constitution, a single and indivisible contract is now brought on par with a contract containing two separate agreements. It has also now become a settled position in law that the State Governments have power to levy sales tax on value of material in execution of the works contract. This position is brought about by creating friction whereby the transfer of moveable property in a works contract is deemed to be sale, even though it may not be well within the meaning of Sale of Goods Act. In Larsen and Toubro case it was further held that the value of gods which can constitute a measure of levy of the tax has to be the value of goods at the time of incorporation of the gods in the works even though property in goods passes later. Taxing the sale of goods element in a works contract is permissible even after incorporation of gods, provided tax is directed to the value of goods at the time of incorporation and does not purport to tax the transfer of immovable property (refer to paragraph 124). 21) In the present case, the assessing authority, after scrutinising the agreement in question between the assessee and the State Government, returned a finding of fact that manufacture and supply of PSC pipes, jointing material specials, valves, anchor blocks, etc. do not fall within the scopes of buildings, bridges, dams, roads and canals. It was also held that the agreement was clearly in two parts, namely, (i) sale and supply of PSC pipes, jointing material specials, valves, anchor blocks, etc. and (ii) the remaining part being supply of labour and services. These findings are upheld not only by the appellate authority but also by the Single Judge of the High Court as well as the Division Bench of the High Court. It may also be mentioned at this stage that the assessee has, in fact, admitted that it had no grievance against the finding that supply of pipes was nothing but the sale of pipes involved in the execution of the contracts and, therefore, it was excisable to sales tax. In view of the findings recorded by the authorities below, this element of sale of goods shall apply to jointing material specials, valves, anchor blocks, etc. as well. Thus, we are unable to find any fault with the impugned judgment of the High Court.
### Response:
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### Explanation:
7) We may mention that the State Government also issued notification dated March 29, 2001 wherein laying of pipeline with material has been categorized as Works contract and because of this the assessee?s work, after the said notification, is considered as Works contract and has been granted exemption from that date. We are, thus, concerned with the execution of this Works contract prior to the yearIn the first instance, it may be mentioned that the High Court has examined the nature of contract in question and has come to the conclusion that as per the terms and conditions thereof, substantial part of the value of the contract pertained to the cost of PSC pipes, joining material specials, valves, etc. which were manufactured by the assessee in its factory at Kekri and were not supplied to the State Government. The High Court, thus, affirmed the findings of the authorities below on this aspect and concluded that the findings with regard to sale of pipes involved in the works contract are findings of facts which did not require anyWe are inclined to agree with the aforesaid approach of the High Court, namely, when it is found on facts that the works contract executed by the assessee is a divisible contract, the argument of the assessee that it is to be treated as one single and composite contract needs to be rejected on the facts of this case. On these facts, we are also of the opinion that Kone Elevator India Private Limited is notIn the instant case, there is no dispute that the contract in question was a works contract. The issue is altogether different, namely, that of divisibility. It may be mentioned that before Article 366(29A) of the Constitution was amended with effect from March 01, 1983, the test applicable was ‘dominant nature test? or ‘degree of intention? or ‘overwhelming component test? or ‘degree of labour and serviceIt clearly follows from the above that by virtue of the Forty Sixth Amendment to the Constitution, a single and indivisible contract is now brought on par with a contract containing two separate agreements. It has also now become a settled position in law that the State Governments have power to levy sales tax on value of material in execution of the works contract. This position is brought about by creating friction whereby the transfer of moveable property in a works contract is deemed to be sale, even though it may not be well within the meaning of Sale of GoodsIn the present case, the assessing authority, after scrutinising the agreement in question between the assessee and the State Government, returned a finding of fact that manufacture and supply of PSC pipes, jointing material specials, valves, anchor blocks, etc. do not fall within the scopes of buildings, bridges, dams, roads and canals. It was also held that the agreement was clearly in two parts, namely, (i) sale and supply of PSC pipes, jointing material specials, valves, anchor blocks, etc. and (ii) the remaining part being supply of labour and services. These findings are upheld not only by the appellate authority but also by the Single Judge of the High Court as well as the Division Bench of the High Court. It may also be mentioned at this stage that the assessee has, in fact, admitted that it had no grievance against the finding that supply of pipes was nothing but the sale of pipes involved in the execution of the contracts and, therefore, it was excisable to sales tax. In view of the findings recorded by the authorities below, this element of sale of goods shall apply to jointing material specials, valves, anchor blocks, etc. as well. Thus, we are unable to find any fault with the impugned judgment of the High Court.
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Hare Krishna Singh & Others Versus State Of Bihar Versus State Of Bihar Vs. | 1982. He was found with the accused persons including Hare Krishna Singh. It is not disputed that he is the brother-in-law of Hare Krishna Singh, as he has been described in the FIR. It is the categorical evidence of PWs 1, 2, 3 and 8 that Paras Singh of Dhobaha had fired at the deceased Jitendra Choudhary. He has been identified by PW 1 in the TI Parade. In the circumstances, we do not find any reason to interfere with the order of conviction and sentence passed by the courts below. 25. So far as Paras Singh of Birampur, the nephew of Jagdish Singh and the sole appellant in Criminal Appeal No. 616 of 1982, is concerned, his case stands on a different footing. Indeed, Mr. Rajender Singh, the learned counsel appearing on behalf of the appellant, has challenged the very presence of the appellant, Paras Singh of Birampur, at the time of occurrence. 26. In the FIR, his name has not been mentioned. It has only been stated "Jagdish Singhs nephew who is in military job of Birampur". Jagdish Singh may have more than one nephew. The IO (PW 9) in his evidence has stated that before the arrest of Paras Singh of Birampur, he did not know his name and he cannot say how many nephews Jagdish Singh has. The only distinctive particular for identification, as given in the FIR, is that the nephew is in military service. The prosecution has not adduced any evidence to show that the appellant is in military service, and that no other nephew of Jagdish Singh is in such service. Thus, the prosecution has not been able to identify the appellant Paras Singh of Birampur with the description of Jagdish Singhs nephew as given in the FIR. The most significant fact is that PW 3 failed to identify the appellant in the TI Parade. PW 8 did not attend the TI Parade. His case is that he was not called to attend the TI Parade. On the other hand, it is the defence case that PW 8 was called but he did not attend the TI Parade. Whatever might have been the reason, the fact remains that no attempt was made by the prosecution to have Paras Singh of Birampur identified by PW 8. In such circumstances, the High Court was not justified and committed an error of law in relying upon the statement of PWs 3 and 8 made before the police mentioning the name of Paras Singh of Birampur in court, but such identification is useless, particularly in the face of the fact that PW 3 had failed to identify him in the TI Parade. In the circumstances, the prosecution has failed to prove the complicity of Paras Singh of Birampur in the crime. Indeed, the prosecution has failed to prove that Paras Singh of Birampur was present at the time of occurrence. His conviction and sentence cannot, therefore, be sustained. 27. Now we may consider the cases of the remaining two accused, namely, Sheo Narain Sharma, the remaining appellant in Criminal Appeal NO. 690 of 1982, and Ram Kumar Upadhaya, the sole appellant in Criminal Appeal No. 615 of 1982. These two appellants have been convicted as a consequence of their sharing the common intention to murder the deceased Jitendra Choudhary. Both of them have been named in the FIR. It is submitted by the learned counsel appearing on behalf of these two appellants that no specific overt act has been attributed to either of them. It may be that they were found in the company of Hare Krishna Singh and Paras Singh of Dhobaha but, the learned counsel submits, that fact will not be sufficient to impute common intention to them. 28. So far as the appellant Ram Kumar Upadhaya is concerned, there is evidence that he went with Hare Krishna Singh, but there is no evidence that he had also left the place of occurrence with him. It is the evidence of all the eye-witnesses, namely, PWs 1, 2, 3 and 8 that Hare Krishna Singh had fired a shot at the deceased Jitendra Choudhary, hitting him in the face and he rolled and fell down from the rickshaw in front of the gate. Thereafter, Paras Singh of Dhobaha also fired at the deceased. After specifically mentioning the names of Hare Krishna Singh and Paras Singh of Dhobaha as persons who had fired at the deceased, PW 3 stated that thereafter two/three firings took place and all the accused went to the shop of Sita Ram in front of the gate on the road from where they also fired upon Jitendra Choudhary. PW 8 in his evidence has also made a general statement that all the accused started firing upon Jitendra Choudhary. It is not readily understandable why the witnesses did not specifically mention the names of Sheo Narain Sharma and Ram Kumar Upadhaya, if they had also fired at the deceased. Except mentioning that these two appellants were present, no overt act was attributed to either of them. 29. The question is whether the crime was committed by Hare Krishna Singh and Paras Singh of Dhobaha in furtherance of the common intention of these two appellants also. Common intention under Section 34 IPC is not by itself an offence. But, it creates a joint and constructive liability for the crime committed in furtherance of such common intention. As no overt act whatsoever has been attributed to the appellants, Ram Kumar Upadhaya and Sheo Narain Sharma, it is difficult to hold, in the facts the circumstances of the case, that they had shared the common intention with Here Krishna Singh and Paras Singh of Dhobaha. When these two appellants were very much known to the eye-witnesses, non-mention of their names in the evidence as to their participation in firing upon the deceased, throws a great doubt as to their sharing of the common intention. The convictions and sentences of these two appellants also cannot, therefore, be sustained. | 0[ds]Upon a conspectus of the decisions mentioned above, we are of the view that the question as to the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is, not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. The burden of proving the guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. The prosecution has to prove the guilt of the accused beyond all reasonable doubts. If the witnesses examined on behalf of the prosecution are believed by the court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accusedIn the circumstances, we do not think that the materials on record including the statement of Hare Krishna Singh under Section 313 CrPC, Probabilise any case of self-defence or that the deceased had inflicted on him the injury by firing at him from his rifleWe do not find any infirmity in the view expressed by the High Court. It is not at all amenable to reason that the deceased had started from his house along with his two sisters with a view to fighting with the accused. In the circumstances, we are of the view that the appellant Hare Krishna Singh had been rightly convicted and sentenced as aboveIn such circumstances, the High Court was not justified and committed an error of law in relying upon the statement of PWs 3 and 8 made before the police mentioning the name of Paras Singh of Birampur in court, but such identification is useless, particularly in the face of the fact that PW 3 had failed to identify him in the TI Parade. In the circumstances, the prosecution has failed to prove the complicity of Paras Singh of Birampur in the crime. Indeed, the prosecution has failed to prove that Paras Singh of Birampur was present at the time of occurrence. His conviction and sentence cannot, therefore, be sustainedCommon intention under Section 34IPC is not by itself an offence. But, it creates a joint and constructive liability for the crime committed in furtherance of such common intention. As no overt act whatsoever has been attributed to the appellants, Ram Kumar Upadhaya and Sheo Narain Sharma, it is difficult to hold, in the facts the circumstances of the case, that they had shared the common intention with Here Krishna Singh and Paras Singh of Dhobaha. When these two appellants were very much known to the eye-witnesses, non-mention of their names in the evidence as to their participation in firing upon the deceased, throws a great doubt as to their sharing of the common intention. The convictions and sentences of these two appellants also cannot, therefore, be sustained | 0 | 5,885 | 589 | ### 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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1982. He was found with the accused persons including Hare Krishna Singh. It is not disputed that he is the brother-in-law of Hare Krishna Singh, as he has been described in the FIR. It is the categorical evidence of PWs 1, 2, 3 and 8 that Paras Singh of Dhobaha had fired at the deceased Jitendra Choudhary. He has been identified by PW 1 in the TI Parade. In the circumstances, we do not find any reason to interfere with the order of conviction and sentence passed by the courts below. 25. So far as Paras Singh of Birampur, the nephew of Jagdish Singh and the sole appellant in Criminal Appeal No. 616 of 1982, is concerned, his case stands on a different footing. Indeed, Mr. Rajender Singh, the learned counsel appearing on behalf of the appellant, has challenged the very presence of the appellant, Paras Singh of Birampur, at the time of occurrence. 26. In the FIR, his name has not been mentioned. It has only been stated "Jagdish Singhs nephew who is in military job of Birampur". Jagdish Singh may have more than one nephew. The IO (PW 9) in his evidence has stated that before the arrest of Paras Singh of Birampur, he did not know his name and he cannot say how many nephews Jagdish Singh has. The only distinctive particular for identification, as given in the FIR, is that the nephew is in military service. The prosecution has not adduced any evidence to show that the appellant is in military service, and that no other nephew of Jagdish Singh is in such service. Thus, the prosecution has not been able to identify the appellant Paras Singh of Birampur with the description of Jagdish Singhs nephew as given in the FIR. The most significant fact is that PW 3 failed to identify the appellant in the TI Parade. PW 8 did not attend the TI Parade. His case is that he was not called to attend the TI Parade. On the other hand, it is the defence case that PW 8 was called but he did not attend the TI Parade. Whatever might have been the reason, the fact remains that no attempt was made by the prosecution to have Paras Singh of Birampur identified by PW 8. In such circumstances, the High Court was not justified and committed an error of law in relying upon the statement of PWs 3 and 8 made before the police mentioning the name of Paras Singh of Birampur in court, but such identification is useless, particularly in the face of the fact that PW 3 had failed to identify him in the TI Parade. In the circumstances, the prosecution has failed to prove the complicity of Paras Singh of Birampur in the crime. Indeed, the prosecution has failed to prove that Paras Singh of Birampur was present at the time of occurrence. His conviction and sentence cannot, therefore, be sustained. 27. Now we may consider the cases of the remaining two accused, namely, Sheo Narain Sharma, the remaining appellant in Criminal Appeal NO. 690 of 1982, and Ram Kumar Upadhaya, the sole appellant in Criminal Appeal No. 615 of 1982. These two appellants have been convicted as a consequence of their sharing the common intention to murder the deceased Jitendra Choudhary. Both of them have been named in the FIR. It is submitted by the learned counsel appearing on behalf of these two appellants that no specific overt act has been attributed to either of them. It may be that they were found in the company of Hare Krishna Singh and Paras Singh of Dhobaha but, the learned counsel submits, that fact will not be sufficient to impute common intention to them. 28. So far as the appellant Ram Kumar Upadhaya is concerned, there is evidence that he went with Hare Krishna Singh, but there is no evidence that he had also left the place of occurrence with him. It is the evidence of all the eye-witnesses, namely, PWs 1, 2, 3 and 8 that Hare Krishna Singh had fired a shot at the deceased Jitendra Choudhary, hitting him in the face and he rolled and fell down from the rickshaw in front of the gate. Thereafter, Paras Singh of Dhobaha also fired at the deceased. After specifically mentioning the names of Hare Krishna Singh and Paras Singh of Dhobaha as persons who had fired at the deceased, PW 3 stated that thereafter two/three firings took place and all the accused went to the shop of Sita Ram in front of the gate on the road from where they also fired upon Jitendra Choudhary. PW 8 in his evidence has also made a general statement that all the accused started firing upon Jitendra Choudhary. It is not readily understandable why the witnesses did not specifically mention the names of Sheo Narain Sharma and Ram Kumar Upadhaya, if they had also fired at the deceased. Except mentioning that these two appellants were present, no overt act was attributed to either of them. 29. The question is whether the crime was committed by Hare Krishna Singh and Paras Singh of Dhobaha in furtherance of the common intention of these two appellants also. Common intention under Section 34 IPC is not by itself an offence. But, it creates a joint and constructive liability for the crime committed in furtherance of such common intention. As no overt act whatsoever has been attributed to the appellants, Ram Kumar Upadhaya and Sheo Narain Sharma, it is difficult to hold, in the facts the circumstances of the case, that they had shared the common intention with Here Krishna Singh and Paras Singh of Dhobaha. When these two appellants were very much known to the eye-witnesses, non-mention of their names in the evidence as to their participation in firing upon the deceased, throws a great doubt as to their sharing of the common intention. The convictions and sentences of these two appellants also cannot, therefore, be sustained.
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Upon a conspectus of the decisions mentioned above, we are of the view that the question as to the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is, not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. The burden of proving the guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. The prosecution has to prove the guilt of the accused beyond all reasonable doubts. If the witnesses examined on behalf of the prosecution are believed by the court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accusedIn the circumstances, we do not think that the materials on record including the statement of Hare Krishna Singh under Section 313 CrPC, Probabilise any case of self-defence or that the deceased had inflicted on him the injury by firing at him from his rifleWe do not find any infirmity in the view expressed by the High Court. It is not at all amenable to reason that the deceased had started from his house along with his two sisters with a view to fighting with the accused. In the circumstances, we are of the view that the appellant Hare Krishna Singh had been rightly convicted and sentenced as aboveIn such circumstances, the High Court was not justified and committed an error of law in relying upon the statement of PWs 3 and 8 made before the police mentioning the name of Paras Singh of Birampur in court, but such identification is useless, particularly in the face of the fact that PW 3 had failed to identify him in the TI Parade. In the circumstances, the prosecution has failed to prove the complicity of Paras Singh of Birampur in the crime. Indeed, the prosecution has failed to prove that Paras Singh of Birampur was present at the time of occurrence. His conviction and sentence cannot, therefore, be sustainedCommon intention under Section 34IPC is not by itself an offence. But, it creates a joint and constructive liability for the crime committed in furtherance of such common intention. As no overt act whatsoever has been attributed to the appellants, Ram Kumar Upadhaya and Sheo Narain Sharma, it is difficult to hold, in the facts the circumstances of the case, that they had shared the common intention with Here Krishna Singh and Paras Singh of Dhobaha. When these two appellants were very much known to the eye-witnesses, non-mention of their names in the evidence as to their participation in firing upon the deceased, throws a great doubt as to their sharing of the common intention. The convictions and sentences of these two appellants also cannot, therefore, be sustained
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Haryana Telecom Ltd Vs. Sterlite Industries (India) Ltd | B.N. Kirpal, J. On a winging up petition having been filed by the respondent before the High Court, the petitioner herein moved an application under Section 8 of the Arbitration and Conciliation Act, 1996, inter alia, contending that the High Court should refer the matter to arbitration. 2. The Single Judge dismissed the application and the same was upheld by the Division Bench. While dismissing the appeal the High Court referred to similar cases relating to applications which have been filed under the provisions of the Indian Arbitration Act, 1940 where the consistent view of the High Courts was that the question regarding the winding up of a company could not be referred to an arbitrator. 3. It is submitted by learned counsel for the petitioner that the language of Section 8 of the 1996 Act is different. Mr. Jaitley submits that according to Section 8(1) the Judicial Authority is bound to refer that matter to the arbitration when an arbitration agreement exists between the parties. Section 8 of the 1996 Act reads as under :- Power to refer parties to arbitration where there is an arbitration agreement - (1) A judicial authority before which an action is brought in a matter which is the subject matter of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made. 4. Sub-section (1) of Section 8 provides that where the judicial authority before whom an action is brought in a matter, will refer the parties to arbitration the said matter in accordance with the arbitration agreement. This, however, postulates, in our opinion, that what can be referred to the arbitrator is only that dispute or matter which the arbitrator is competent or empowered to decide. 5. The claim in a petition for winding up is not for money. The petition filed under the Companies Act would be to the effect, in a matter like this, that the company has become commercially insolvent and, therefore, should be wound up. The power to order winding up of a company is contained under the Companies Act and is conferred on the Court. An arbitrator, notwithstanding any agreement between the parties, would have no jurisdiction to order winding up of a company. The matter which is pending before the High Court in which the application was filed by the petitioner herein was relating to winding up of the company. That could obviously not be referred to the arbitration and, therefore, the High Court, in our opinion was right in rejecting the application. | 0[ds]n (1) of Section 8 provides that where the judicial authority before whom an action is brought in a matter, will refer the parties to arbitration the said matter in accordance with the arbitration agreement. This, however, postulates, in our opinion, that what can be referred to the arbitrator is only that dispute or matter which the arbitrator is competent or empowered to decide5. The claim in a petition for winding up is not for money. The petition filed under the Companies Act would be to the effect, in a matter like this, that the company has become commercially insolvent and, therefore, should be wound up. The power to order winding up of a company is contained under the Companies Act and is conferred on the Court. An arbitrator, notwithstanding any agreement between the parties, would have no jurisdiction to order winding up of a company. The matter which is pending before the High Court in which the application was filed by the petitioner herein was relating to winding up of the company. That could obviously not be referred to the arbitration and, therefore, the High Court, in our opinion was right in rejecting the application. | 0 | 555 | 224 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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B.N. Kirpal, J. On a winging up petition having been filed by the respondent before the High Court, the petitioner herein moved an application under Section 8 of the Arbitration and Conciliation Act, 1996, inter alia, contending that the High Court should refer the matter to arbitration. 2. The Single Judge dismissed the application and the same was upheld by the Division Bench. While dismissing the appeal the High Court referred to similar cases relating to applications which have been filed under the provisions of the Indian Arbitration Act, 1940 where the consistent view of the High Courts was that the question regarding the winding up of a company could not be referred to an arbitrator. 3. It is submitted by learned counsel for the petitioner that the language of Section 8 of the 1996 Act is different. Mr. Jaitley submits that according to Section 8(1) the Judicial Authority is bound to refer that matter to the arbitration when an arbitration agreement exists between the parties. Section 8 of the 1996 Act reads as under :- Power to refer parties to arbitration where there is an arbitration agreement - (1) A judicial authority before which an action is brought in a matter which is the subject matter of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made. 4. Sub-section (1) of Section 8 provides that where the judicial authority before whom an action is brought in a matter, will refer the parties to arbitration the said matter in accordance with the arbitration agreement. This, however, postulates, in our opinion, that what can be referred to the arbitrator is only that dispute or matter which the arbitrator is competent or empowered to decide. 5. The claim in a petition for winding up is not for money. The petition filed under the Companies Act would be to the effect, in a matter like this, that the company has become commercially insolvent and, therefore, should be wound up. The power to order winding up of a company is contained under the Companies Act and is conferred on the Court. An arbitrator, notwithstanding any agreement between the parties, would have no jurisdiction to order winding up of a company. The matter which is pending before the High Court in which the application was filed by the petitioner herein was relating to winding up of the company. That could obviously not be referred to the arbitration and, therefore, the High Court, in our opinion was right in rejecting the application.
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### Explanation:
n (1) of Section 8 provides that where the judicial authority before whom an action is brought in a matter, will refer the parties to arbitration the said matter in accordance with the arbitration agreement. This, however, postulates, in our opinion, that what can be referred to the arbitrator is only that dispute or matter which the arbitrator is competent or empowered to decide5. The claim in a petition for winding up is not for money. The petition filed under the Companies Act would be to the effect, in a matter like this, that the company has become commercially insolvent and, therefore, should be wound up. The power to order winding up of a company is contained under the Companies Act and is conferred on the Court. An arbitrator, notwithstanding any agreement between the parties, would have no jurisdiction to order winding up of a company. The matter which is pending before the High Court in which the application was filed by the petitioner herein was relating to winding up of the company. That could obviously not be referred to the arbitration and, therefore, the High Court, in our opinion was right in rejecting the application.
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Roger Shashoua Vs. Mukesh Sharma | location of hearings to be in London. To elaborate, the distinction between the venue and the seat remains. But when a Court finds there is prescription for venue and something else, it has to be adjudged on the facts of each case to determine the juridical seat. As in the instant case, the agreement in question has been interpreted and it has been held that London is not mentioned as the mere location but the courts in London will have the jurisdiction, another interpretative perception as projected by the learned senior Counsel is unacceptable. 69. Another aspect that was highlighted before us and with immense force and enthusiasm requires to be adverted to. It has been submitted that the arbitration agreement has the closest and most real connection with India and hence, the Courts in India would have the jurisdiction as per the principle laid down in Singer Co. (supra). In the said case, it has been expressed thus:16. Where the parties have not expressly or impliedly selected the proper law, the courts impute an intention by applying the objective test to determine what the parties would have as just and reasonable persons intended as regards the applicable law had they applied their minds to the question. The Judge has to determine the proper law for the parties in such circumstances by putting himself in the place of a "reasonable man". He has to determine the intention of the parties by asking himself how a just and reasonable person would have regarded the problem", The Assunzione; Mount Albert Borough Council v. Australasian Temperance and General Mutual Life Assurance Society Ltd. 17. For this purpose the place where the contract was made, the form and object of the contract, the place of performance, the place of residence or business of the parties, reference to the courts having jurisdiction and such other links are examined by the courts to determine the system of law with which the transaction has its closest and most real connection.And again:44. It is important to recall that in the instant case the parties have expressly stated that the laws applicable to the contract would be the laws in force in India and that the courts of Delhi would have exclusive jurisdiction "in all matters arising under this contract". They have further stated that the "contract shall in all respects be construed and governed according to Indian laws". These words are wide enough to engulf every question arising under the contract including the disputes between the parties and the mode of settlement. It was in Delhi that the agreement was executed. The form of the agreement is closely related to the system of law in India. Various Indian enactments are specifically mentioned in the agreement as applicable to it in many respects. The contract is to be performed in India with the aid of Indian workmen whose conditions of service are regulated by Indian laws. One of the parties to the contract is a public sector undertaking. The contract has in every respect the closest and most real connection with the Indian system of law and it is by that law that the parties have expressly evinced their intention to be bound in all respects. The arbitration agreement is contained in one of the clauses of the contract, and not in a separate agreement. In the absence of any indication to the contrary, the governing law of the contract (i.e., in the words of Dicey, the proper law of the contract) being Indian law, it is that system of law which must necessarily govern matters concerning arbitration, although in certain respects the law of the place of arbitration may have its relevance in regard to procedural matters.70. It is apposite to note that the said decision has been discussed at length in Union of India v. Reliance Industries Limited. The Court, in fact, reproduced the arbitration Clause in Singer Co. (supra) and referred to the analysis made in the judgment and noted that notwithstanding the award, it was a foreign award, since the substantive law of the contract was Indian law and the arbitration law was part of the contract, the arbitration Clause would be governed by Indian law and not by the Rules of International Chambers of Commerce. On that basis the Court held in Singer Co. (supra) that the mere fact that the venue chosen by the ICC Court or conduct of the arbitration proceeding was London, does not exclude the operation of the Act which dealt with the domestic awards under the 1940 Act. The two-Judge Bench in Reliance Industries Limited. quoted para 53 of Singer Co. (supra) and thereafter opined:13. It can be seen that this Court in Singer case did not give effect to the difference between the substantive law of the contract and the law that governed the arbitration. Therefore, since a construction of Section 9(b) of the Foreign Awards Act led to the aforesaid situation and led to the doctrine of concurrent jurisdiction, the 1996 Act, while enacting Section 9(a) of the repealed Foreign Awards Act, 1961, in Section 51 thereof, was careful enough to omit Section 9(b) of the 1961 Act which, as stated hereinabove, excluded the Foreign Awards Act from applying to any award made on arbitration agreements governed by the law of India. 14. This being the case, the theory of concurrent jurisdiction was expressly given a go-by with the dropping of Section 9(b) of the Foreign Awards Act, while enacting Part II of the Arbitration Act, 1996, which repealed all the three earlier laws and put the law of arbitration into one statute, albeit in four different parts.71. We respectfully concur with the said view, for there is no reason to differ. Apart from that, we have already held that the agreement in question having been interpreted in a particular manner by the English courts and the said interpretation having gained acceptation by this Court, the inescapable conclusion is that the courts in India have no jurisdiction. | 1[ds]25. It is patent from the law enunciated in the aforesaid decision is that stipulations in the agreement are required to be studiedly analysed and appropriately appreciated for the purpose of arriving at whether there is express or implied exclusion and further meaning of the term "seat of arbitration". The Court has also ruled that it is necessary to avoid inconsistency between the provisions in the agreement and Part I of the Act.At this juncture, we may state that there are other subsequent authorities that have dealt with express or implied exclusion. There are also authorities which have declined to accept the stance of implied exclusion. We shall refer to the same at the subsequent stage when we shall refer to the Share Holders Agreement (SHA) and appreciate what interpretation needs to be placed on the Clause relating to arbitration. Prior to that we are disposed to think to address the issue as regards the approval of Shashoua principle in BALCO and the legal acceptability of the observations made by theBench in Enercon (India) Ltd. (supra) or it is per incuriam as is proponed bythe learned senior50. We had earlier extracted extensively from the said judgment, as we find, the Court after adverting to various aspects, has categorically held that the High Court had not followed Shashoua principle. The various decisions referred to in Enercon (India) Ltd. (supra), the analysis made and the propositions deduced leads to an indubitable conclusion that Shashoua principle has been accepted by Enercon (India) Ltd. (supra). It is also to be noted that in BALCO, the Constitution Bench has not merely reproduced few paragraphs from Shashoua but has also referred to other decisions on which Shashoua has placed reliance upon. As we notice, there is analysis of earlier judgments, though it does not specifically state that "propositions laid down in Shashoua are accepted". On a clear reading, the ratio of the decision in BALCO, in the ultimate eventuate, reflects that the Shashoua principle has been accepted and theBench in Enercon (India) Ltd. (supra), after succinctly analyzing it, has stated that the said principles have been accepted by the Constitution Bench. Therefore, we are unable to accept the submission of Mr. Chidambaram that the finding recorded in Enercon (India) Ltd. (supra) that Shashoua principle has been accepted in BALCO should be declared as per incuriam.At this juncture, we think it necessary to dwell upon the issue whetherShashoua principle is the ratio decidendi of BALCO and Enercon (India) Ltd. (supra)and we intend to do so for the sake of completeness. It is well settled in law that the ratio decidendi of each case has to be correctly understood.From the aforesaid authorities, it is quite vivid that a ratio of a judgment has the precedential value and it is obligatory on the part of the Court to cogitate on the judgment regard being had to the facts exposited therein and the context in which the questions had arisen and the law has been declared. It is also necessary to read the judgment in entirety and if any principle has been laid down, it has to be considered keeping in view the questions that arose for consideration in the case. One is not expected to pick up a word or a sentence from a judgment de hors from the context and understand the ratio decidendi which has the precedential value. That apart, the Court before whom an authority is cited is required to consider what has been decided therein but not what can be deduced by following a syllogistic process.Tested on the aforesaid principle, we find that question that arose in BALCO and the discussion that has been made by the larger Bench relating to Shashoua and C v. D (supra) are squarely in the context of applicability of Part I or Part II of the Act. It will not be erroneous to say that the Constitution Bench has built the propositional pyramid on the basis or foundation of certain judgments and Shashoua and C v. D (supra) are two of them. It will be inappropriate to say that in Enercon (India) Ltd. (supra) the Court has cryptically observed that observations made in Shashoua have been approvingly quoted by the Court in BALCO in para 110. We are inclined to think, as we are obliged to, that Shashoua principle has been accepted in BALCO as well as Enercon (India) Ltd. (supra) on proper ratiocination and, therefore, the submission advanced on this score byMr. Chidambaram, learned seniornt, is repelled.59. Thus, the analysis made in the said case, theBench has opined that a precedent is a judicial decision containing a principle which forms an authoritative element termed as ratio decidendi and any reasons assigned in support of such interim order containing prima facie findings are only tentative. There cannot be any quarrel over the aforesaid proposition of law. However, the controversy involved in this case has its distinctive characteristics. The Commercial Court in London, interpreting the same agreement adverted to earlier judgments (may be ininjunction) and held that in such a situation the Courts in London will have jurisdiction. The analysis made therein, as has been stated earlier, has been appreciated in BALCO and Enercon (India) Ltd. (supra) and this Court has approved the principle set forth in the said case. Once this Court has accepted the principle, the principle governs as it holds the field and it becomes a binding precedent. To explicate, what has been stated in Shashoua as regards the determination of seat/place on one hand and venue on the other having been accepted by this Court, the conclusion in Shashoua cannot be avoided by the parties. It will be an anathema to law to conceive a situation where this Court is obligated to accept that the decisions in BALCO and Enercon (India) Ltd. (supra) which approve Shashoua principle are binding precedents, yet with some innate sense of creativity will dwell upon and pronounce, as canvassed bythe learned seniornt, thatdispute arose in the context of aninjunction and, therefore, the same having not attained finality, would not bind the parties. This will give rise to a total incompatible situation and certainly lead to violation of judicial discipline. We cannot conceive it to be permissible. Therefore, without any hesitation, we reject the said submission.In view of the aforesaid, there cannot be any trace of doubt that any filing of an application by thein the courts in India can clothe such courts with jurisdiction unless the law vests the same in them.Though we have opined that Shashoua principle has been accepted in BALCO and Enercon (India) Ltd. (supra), yet we think it apt to refer to the clauses in the agreement and scrutinize whether there is any scope to hold that the courts in India could have entertained the petition. Clause 14 of the shareholders agreement (SHA) refers towe perceive, therelating to the arbitration stipulates that the arbitral proceedings shall be in accordance with the ICC Rules. There is ain the SHA that the governing law of SHA would be laws of India. The aforesaid agreement has already been interpreted by the English Courts to mean that the parties have not simply provided for the location of hearing to be in London.It is worthy to note that the arbitration agreement is not silent as to what law and procedure is to be followed. On the contrary, Clause 14.1 lays down that the arbitration proceedings shall be in accordance with the Rules of Conciliation and Arbitration of the ICC. In Enercon (India) Ltd. (supra), theBench referring to Shashoua case accepted the view of Cooke, J. that the phrase "venue of arbitration shall be in London, UK" was accompanied by the provision in the arbitrationor arbitration to be conducted in accordance with the Rules of ICC in Paris. TheBench accepted the Rules of ICC, Paris which is supernational body of Rules as has been noted by Cooke, J. and that is how it has accepted that the parties have not simply provided for the location of hearings to be in London. To elaborate, the distinction between the venue and the seat remains. But when a Court finds there is prescription for venue and something else, it has to be adjudged on the facts of each case to determine the juridical seat. As in the instant case, the agreement in question has been interpreted and it has been held that London is not mentioned as the mere location but the courts in London will have the jurisdiction, another interpretative perception as projected bythe learned senior1. We respectfully concur with the said view, for there is no reason to differ. Apart from that, we have already held that the agreement in question having been interpreted in a particular manner by the English courts and the said interpretation having gained acceptation by this Court, the inescapable conclusion is that the courts in India have no jurisdiction. | 1 | 15,488 | 1,653 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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location of hearings to be in London. To elaborate, the distinction between the venue and the seat remains. But when a Court finds there is prescription for venue and something else, it has to be adjudged on the facts of each case to determine the juridical seat. As in the instant case, the agreement in question has been interpreted and it has been held that London is not mentioned as the mere location but the courts in London will have the jurisdiction, another interpretative perception as projected by the learned senior Counsel is unacceptable. 69. Another aspect that was highlighted before us and with immense force and enthusiasm requires to be adverted to. It has been submitted that the arbitration agreement has the closest and most real connection with India and hence, the Courts in India would have the jurisdiction as per the principle laid down in Singer Co. (supra). In the said case, it has been expressed thus:16. Where the parties have not expressly or impliedly selected the proper law, the courts impute an intention by applying the objective test to determine what the parties would have as just and reasonable persons intended as regards the applicable law had they applied their minds to the question. The Judge has to determine the proper law for the parties in such circumstances by putting himself in the place of a "reasonable man". He has to determine the intention of the parties by asking himself how a just and reasonable person would have regarded the problem", The Assunzione; Mount Albert Borough Council v. Australasian Temperance and General Mutual Life Assurance Society Ltd. 17. For this purpose the place where the contract was made, the form and object of the contract, the place of performance, the place of residence or business of the parties, reference to the courts having jurisdiction and such other links are examined by the courts to determine the system of law with which the transaction has its closest and most real connection.And again:44. It is important to recall that in the instant case the parties have expressly stated that the laws applicable to the contract would be the laws in force in India and that the courts of Delhi would have exclusive jurisdiction "in all matters arising under this contract". They have further stated that the "contract shall in all respects be construed and governed according to Indian laws". These words are wide enough to engulf every question arising under the contract including the disputes between the parties and the mode of settlement. It was in Delhi that the agreement was executed. The form of the agreement is closely related to the system of law in India. Various Indian enactments are specifically mentioned in the agreement as applicable to it in many respects. The contract is to be performed in India with the aid of Indian workmen whose conditions of service are regulated by Indian laws. One of the parties to the contract is a public sector undertaking. The contract has in every respect the closest and most real connection with the Indian system of law and it is by that law that the parties have expressly evinced their intention to be bound in all respects. The arbitration agreement is contained in one of the clauses of the contract, and not in a separate agreement. In the absence of any indication to the contrary, the governing law of the contract (i.e., in the words of Dicey, the proper law of the contract) being Indian law, it is that system of law which must necessarily govern matters concerning arbitration, although in certain respects the law of the place of arbitration may have its relevance in regard to procedural matters.70. It is apposite to note that the said decision has been discussed at length in Union of India v. Reliance Industries Limited. The Court, in fact, reproduced the arbitration Clause in Singer Co. (supra) and referred to the analysis made in the judgment and noted that notwithstanding the award, it was a foreign award, since the substantive law of the contract was Indian law and the arbitration law was part of the contract, the arbitration Clause would be governed by Indian law and not by the Rules of International Chambers of Commerce. On that basis the Court held in Singer Co. (supra) that the mere fact that the venue chosen by the ICC Court or conduct of the arbitration proceeding was London, does not exclude the operation of the Act which dealt with the domestic awards under the 1940 Act. The two-Judge Bench in Reliance Industries Limited. quoted para 53 of Singer Co. (supra) and thereafter opined:13. It can be seen that this Court in Singer case did not give effect to the difference between the substantive law of the contract and the law that governed the arbitration. Therefore, since a construction of Section 9(b) of the Foreign Awards Act led to the aforesaid situation and led to the doctrine of concurrent jurisdiction, the 1996 Act, while enacting Section 9(a) of the repealed Foreign Awards Act, 1961, in Section 51 thereof, was careful enough to omit Section 9(b) of the 1961 Act which, as stated hereinabove, excluded the Foreign Awards Act from applying to any award made on arbitration agreements governed by the law of India. 14. This being the case, the theory of concurrent jurisdiction was expressly given a go-by with the dropping of Section 9(b) of the Foreign Awards Act, while enacting Part II of the Arbitration Act, 1996, which repealed all the three earlier laws and put the law of arbitration into one statute, albeit in four different parts.71. We respectfully concur with the said view, for there is no reason to differ. Apart from that, we have already held that the agreement in question having been interpreted in a particular manner by the English courts and the said interpretation having gained acceptation by this Court, the inescapable conclusion is that the courts in India have no jurisdiction.
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therein and the context in which the questions had arisen and the law has been declared. It is also necessary to read the judgment in entirety and if any principle has been laid down, it has to be considered keeping in view the questions that arose for consideration in the case. One is not expected to pick up a word or a sentence from a judgment de hors from the context and understand the ratio decidendi which has the precedential value. That apart, the Court before whom an authority is cited is required to consider what has been decided therein but not what can be deduced by following a syllogistic process.Tested on the aforesaid principle, we find that question that arose in BALCO and the discussion that has been made by the larger Bench relating to Shashoua and C v. D (supra) are squarely in the context of applicability of Part I or Part II of the Act. It will not be erroneous to say that the Constitution Bench has built the propositional pyramid on the basis or foundation of certain judgments and Shashoua and C v. D (supra) are two of them. It will be inappropriate to say that in Enercon (India) Ltd. (supra) the Court has cryptically observed that observations made in Shashoua have been approvingly quoted by the Court in BALCO in para 110. We are inclined to think, as we are obliged to, that Shashoua principle has been accepted in BALCO as well as Enercon (India) Ltd. (supra) on proper ratiocination and, therefore, the submission advanced on this score byMr. Chidambaram, learned seniornt, is repelled.59. Thus, the analysis made in the said case, theBench has opined that a precedent is a judicial decision containing a principle which forms an authoritative element termed as ratio decidendi and any reasons assigned in support of such interim order containing prima facie findings are only tentative. There cannot be any quarrel over the aforesaid proposition of law. However, the controversy involved in this case has its distinctive characteristics. The Commercial Court in London, interpreting the same agreement adverted to earlier judgments (may be ininjunction) and held that in such a situation the Courts in London will have jurisdiction. The analysis made therein, as has been stated earlier, has been appreciated in BALCO and Enercon (India) Ltd. (supra) and this Court has approved the principle set forth in the said case. Once this Court has accepted the principle, the principle governs as it holds the field and it becomes a binding precedent. To explicate, what has been stated in Shashoua as regards the determination of seat/place on one hand and venue on the other having been accepted by this Court, the conclusion in Shashoua cannot be avoided by the parties. It will be an anathema to law to conceive a situation where this Court is obligated to accept that the decisions in BALCO and Enercon (India) Ltd. (supra) which approve Shashoua principle are binding precedents, yet with some innate sense of creativity will dwell upon and pronounce, as canvassed bythe learned seniornt, thatdispute arose in the context of aninjunction and, therefore, the same having not attained finality, would not bind the parties. This will give rise to a total incompatible situation and certainly lead to violation of judicial discipline. We cannot conceive it to be permissible. Therefore, without any hesitation, we reject the said submission.In view of the aforesaid, there cannot be any trace of doubt that any filing of an application by thein the courts in India can clothe such courts with jurisdiction unless the law vests the same in them.Though we have opined that Shashoua principle has been accepted in BALCO and Enercon (India) Ltd. (supra), yet we think it apt to refer to the clauses in the agreement and scrutinize whether there is any scope to hold that the courts in India could have entertained the petition. Clause 14 of the shareholders agreement (SHA) refers towe perceive, therelating to the arbitration stipulates that the arbitral proceedings shall be in accordance with the ICC Rules. There is ain the SHA that the governing law of SHA would be laws of India. The aforesaid agreement has already been interpreted by the English Courts to mean that the parties have not simply provided for the location of hearing to be in London.It is worthy to note that the arbitration agreement is not silent as to what law and procedure is to be followed. On the contrary, Clause 14.1 lays down that the arbitration proceedings shall be in accordance with the Rules of Conciliation and Arbitration of the ICC. In Enercon (India) Ltd. (supra), theBench referring to Shashoua case accepted the view of Cooke, J. that the phrase "venue of arbitration shall be in London, UK" was accompanied by the provision in the arbitrationor arbitration to be conducted in accordance with the Rules of ICC in Paris. TheBench accepted the Rules of ICC, Paris which is supernational body of Rules as has been noted by Cooke, J. and that is how it has accepted that the parties have not simply provided for the location of hearings to be in London. To elaborate, the distinction between the venue and the seat remains. But when a Court finds there is prescription for venue and something else, it has to be adjudged on the facts of each case to determine the juridical seat. As in the instant case, the agreement in question has been interpreted and it has been held that London is not mentioned as the mere location but the courts in London will have the jurisdiction, another interpretative perception as projected bythe learned senior1. We respectfully concur with the said view, for there is no reason to differ. Apart from that, we have already held that the agreement in question having been interpreted in a particular manner by the English courts and the said interpretation having gained acceptation by this Court, the inescapable conclusion is that the courts in India have no jurisdiction.
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ASSA SINGH (D) BY LRs Vs. SHANTI PARSHAD (D) BY LRs. & OTHERS | dispute relating to landlord-tenant relationship, the orders passed by the authorities under the Act can be found to be null and void for the reason that transgressing the power conferred, the authorities proceed to decide the matter, (which again it must be remembered under Section 10 (2) is to be a summary decision) which is the vexed issue relating to the very existence of the landlord-tenant relationship. 52. The words used in Section 25 of the Act, as already noticed, is that except in accordance with the provisions of the Act, the validity of any proceeding or Order, taken or made under the Act, cannot be questioned in any Court or before any other Authority. In the dissenting opinion, Justice R.S. Sarkaria, in Amar Singh and another (supra), has explained the scope of the expression except in accordance with the provisions of the Act, with reference to Section 24 of the Act. In other words, an Order passed under Section 14A, could be challenged by way of an Appeal, Review and Revision, as provided in the Tenancy Act, adverted to in Section 24 of the Act. This explained, the question perseveres, however, as to whether the validity of proceeding or Order passed, is beyond challenge in a Civil Court, under circumstances analogous to that obtaining, with reference to a proceeding under Section 77 of the Tenancy Act. In other words, Section 77 of the Tenancy Act, inter alia, provided for seeking eviction of a tenant before the Revenue Officer. Section 14A of the Act, similarly, confers powers upon the Revenue Officer, to entertain an application for evicting a tenant. 53. The principles relating to exclusion of Civil Courts jurisdiction are well-settled. Ouster of the jurisdiction of the Civil Court is not readily inferred. In the scheme of the Tenancy Act also, an Order under Section 77 could be subjected to Appeal, Review and Revision, as provided in the Act. Section 77(3) of the Tenancy Act, purported to confer exclusive power on the Revenue Court to decide certain disputes and ousted jurisdiction of courts. This included the proceeding to evict the tenant. In other words, Civil Court could not entertain the application to evict a tenant. It is in this statutory framework that this Court has stated the view that if a landlord-tenant relationship is disputed, despite the exclusive jurisdiction conferred on the Revenue Court, to even Order eviction of a tenant, the Civil Court would still retain jurisdiction in a case where there is a dispute relating to landlord-tenant relationship. The Act was enacted in 1953. As noticed by us, Section 14A of the Act, provided for the eviction of a tenant notwithstanding anything contained in any other law. Therefore, apart from the fact that it became an exhaustive catalogue of circumstances, entitling the landlord to launch proceedings for eviction and also further designating the Statutory Authority, before which, it could be filed, it provided for a bar to challenge the validity of the orders passed, except by way of the remedies provided under the Tenancy Act. There would not be any justification for revisiting the principle laid down that when the relationship between landlord and tenant is contested, the Civil Court continue to have the jurisdiction despite the bar under Section 25 of the Act. We see no reason to hold that the validity of the Order passed by the Assistant Collector, as may be affirmed in Appeal, Review or Revision, cannot be questioned in a Civil Court, if the expression validity is conflated with legality. In other words, if an Order is illegal, it would be invalid. The illegality of an Order can arise out of various causes. An Order may be illegal, and therefore, invalid, on the ground that the Author of the Order, in this case, the Authorities designated under Section 14A, did not have the power to decide the issue. We are in this case concerned with illegality due to absence of power. We are not called upon to decide the position, where the Authority, under the Act, violates the fundamental procedure relating to natural justice and the Civil Court is invited to sit in Judgment over the same. What we find, is that, the expression validity of the decision or the Order in Section 25 of the Act, would not include a case where, despite a dispute projected, that there was no landlord-tenant relationship, the Authority decides the said issue in the course of the Order of Eviction, under Section 14A, after brushing aside the tenants objection relating to his position, viz., that he is not a tenant. In such a situation, the validity is tied-up with the fundamental aspect of absence of power of the Authority to decide on the question of landlord-tenant relationship. We must clarify, therefore, that the validity of the orders under Section 14A is open to scrutiny in a Civil Court, in a situation, when the tenant denies and disputes the case of the landlord that there is a landlord-tenant relationship. We must, however, further hold that a mere plea by the tenant, should not lead, without anything more, to render the Authorities helpless and bereft of power to order eviction. In a situation, where, the Authority finds the plea of the tenant to be completely frivolous and mere attempt at blocking the proceedings, the validity enacted under Section 25, cannot be diluted. The position must be understood as that the power to decide, cannot be assigned to the Authorities under the Act, of the existence of the landlord-tenant relationship, as noted hereinbefore. 54. In the facts of this case, we have noticed the nature of the contention. Even the case of the appellants is that of failure to pay rent by the respondent-tenant. The tenant claims to be a tenant under the Mandir, which has been found to be the owner of the property. Appellants claim under an assignment made by the Mahant, who has been found to be without Authority to convey any right to the appellants. | 0[ds]24. They are as follows:i. In Shankar Singh Etc. v. Mangal Singh Etc. AIR 1973 P&H 307, an ex parte Order of Ejectment passed by the Assistant Collector came to be set aside by the Collector. The Collector ordered the tenant to be put back in possession. The learned Judge found assurance in the principle that an act of Court could not cause injury to any of the parties. The Court relied upon Rules made under the Act and also the Tenancy Act. It was further, no doubt, observed that, under Section 25 of the Act, the Order could not be challenged in a Civil Court and the Suit was, therefore, barred under Section 25. We may at once notice that this case did not involve any dispute concerning the existence of landlord-tenant relationship.ii. In State of Punjab (now Haryana) and others v. Amar Singh and another (1974) 2 SCC 70 , a Bench of three learned Judges had to consider the question, inter alia, as to whether the expression transfer or other disposition of land, in Clause (b) of Section 10A of the Act, included involuntary transfer of a part of holding of a land owner by operation of an Order forcing a land owner to sell a part of his holding to a tenant under Section 18 of the Act. In the Majority Judgment, the contention of the appellant-State was accepted. Justice R.S. Sarkaria dissented. In the course of his dissent, while surveying the Act and having considered the scheme of the Tenancy Act as well, the learned Judge held as follows:101. Section 25 of the Act provides:Except in accordance with the provisions of this Act, the validity of any proceedings of order taken or made under this Act shall not be called in question in any Court or before any other authority.102. On analysis of the Section, it is clear that it gives a two-fold mandate. On one hand it debars the jurisdiction of Courts or other authorities to question the validity of any proceeding or order taken or made under the Act, and on the other it prohibits the impeachment of such orders or proceedings in a manner which is not in accordance with the provisions of the Act. It indicates that decisions of the authorities under the Act can be challenged only by way of appeal, review or revision as provided in Sections 80, 81, 82, 83 and 84 of the Punjab Tenancy Act, 1887, made applicable by Section 24 of the Act, or in the Rules made under the Act.103. The Punjab and Haryana High Court has consistently taken this view. The Full Bench in Dhaunkal v. Man Kauri (supra) also held that the Assistant Collector while dealing with the purchase application under Section 18 has no jurisdiction to sit in appeal or revision over the order of the Surplus Area Collector passed in surplus area proceeding and he has no jurisdiction to ignore that order.104. The rule equally holds good in the converse. In the Full Bench decision in Mam Raj v. Punjab State (supra), it was held that once an application of the tenant under Section 18 has been allowed and the order is not set aside in appeal or revision, the same becomes final and remains immune to an attack against its validity on any ground including that of collusion, before the co- ordinate authorities under the Act dealing with the question of determination of surplus area. If I may say so with respect, this proposition laid down by the Full Bench is unexceptionable.We may incidentally notice the substance of the question which arose in the said case. The Act contemplates a maximum holding, which is permissible, which is described as the permissible area. The Act also provided for the excess land or the surplus land to be vested in the State to be utilised for assigning the land to the landless. The tenant of a landlord, in certain circumstances, could obtain an order of purchase. This was provided in Section 18. Section 10A(b) of the Act, on the other hand, provided that transfer or other dispossession of property in certain circumstances, were to be treated as void. Justice R.S. Sarkaria took the view that merely because there was a compromise, as long as the ingredients of the statutory provisions were satisfied, such an Order could not be brushed aside on the ground that it was born out of compromise. As we shall see from a consideration of other decisions that this Judgment may not advance the case of the appellants that Section 25 will be an absolute bar.iii. We do not think that the Judgment of this Court in Salem Advocate Bar Association, T.N. v. Union of India (2005) 6 SCC 344 should detain us as it does not specifically deal with the question at hand.iv. In Kamla Devi Widow of Hans Raj, etc. v. Financial Commissioner (Appeals), Punjab and others (2013) SCCOnline P&H 7911, a Bench of the Punjab and Haryana High Court was dealing with an Order of the learned Single Judge allowing the Writ Petition, by which, setting aside the Order of the Authorities under the Act, he ordering the appellants-tenants eviction. A perusal of the said Judgment does not show that there was any dispute relating to landlord-tenant relationship. In fact, the question revolved around whether right to purchase the right of the landlord by the tenant stood crystalised upon the declaration of the surplus area. It was found by the Court that any subsequent Act, after the declaration of the surplus area by a big land owner, by transferring of the land by a big land owner or his death before the application of purchase was allowed or even the enactment of the 1972 Act (by which the Act was repealed), did not adversely affect the right of the appellant-tenant to effect purchase of landlords right under Section 18 of the Act. We would observe that this Judgment, does not, in any way, advance the case of the appellants.v. The Judgment of learned Single Judge in R.S.A. No. 948 of 2017 of the High Court of Punjab and Haryana also does not, in any way, assist the case of the appellants. On facts, it does not have application as regards the question at hand.vi. The last Judgment relied upon by the appellants is Judgment of this Court in Bhagwat Sharan (Dead Through Legal Representatives) v. Purushottam and others (2020) 6 SCC 387 . We take it that the appellants seek to derive support from following paragraphs:26. It is also not disputed that the plaintiff and Defendants 1 to 3 herein filed suit for eviction of an occupant in which he claimed that the property had been bequeathed to him by Hari Ram. According to the defendants, the plaintiff having accepted the will of Hariram and having taken benefit of the same, cannot turn around and urge that the will is not valid and that the entire property is a joint family property. The plaintiff and Defendants 1 to 3 by accepting the bequest under the will elected to accept the will. It is trite law that a party cannot be permitted to approbate and reprobate at the same time. This principle is based on the principle of doctrine of election. In respect of wills, this doctrine has been held to mean that a person who takes benefit of a portion of the will cannot challenge the remaining portion of the will. In Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd. [Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., (2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153 : AIR 2013 SC 1241 ] , this Court made an observation that a party cannot be permitted to blow hot and cold, fast and loose or approbate and reprobate. Where one party knowingly accepts the benefits of a contract or conveyance or an order, it is estopped to deny the validity or binding effect on him of such contract or conveyance or order.27. The doctrine of election is a facet of law of estoppel. A party cannot blow hot and blow cold at the same time. Any party which takes advantage of any instrument must accept all that is mentioned in the said document. It would be apposite to refer to the treatise Equity—A Course of Lectures by F.W. Maitland, Cambridge University, 1947, wherein the learned author succinctly described principle of election in the following terms:The doctrine of election may be thus stated : that he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it….This view has been accepted to be the correct view in Karam Kapahi v. Lal Chand Public Charitable Trust [Karam Kapahi v. Lal Chand Public Charitable Trust, (2010) 4 SCC 753 : (2010) 2 SCC (Civ) 262] . The plaintiff having elected to accept the will of Hari Ram, by filing a suit for eviction of the tenant by claiming that the property had been bequeathed to him by Hari Ram, cannot now turn around and say that the averments made by Hari Ram that the property was his personal property, is incorrect.vii. This is essentially a matter relating to merit concluded by decision of three courts. Further on facts, we do not think the principles are attracted.d. A Bench of five learned Judges of Punjab and Haryana High Court, in the decision in State of Haryana and others v. Vinod Kumar and others dated 14.10.1985, Second Appeal No. 2930 of 1980, took the view that a Suit lay despite the bar under Section 25 of the Act to challenge an Order, which is a nullity even though passed by the Authority under the Act, in a situation where no notice was served by the Collector before the Order was passed. This case would not have any application in the facts in this case.29. In Kul Bhushan etc. v. Faquira and others (in L.P.A. No. 35 of 1974, decided on 10.03.1976), a Division Bench of Punjab and Haryana High Court had to consider the following facts – The surplus area of a big land owner was determined under the Act. Thereafter, he died. After two and a half years, the surplus area was allotted to tenants. Possession was also given to them. Kul Bhushan, along with others, who were the legal heirs of the big land owner, filed the Suit for possession, contending that they have become small land owners upon the death of their predecessor in interest (the big land owner). Consequently, they were illegally dispossessed. The defendants set up the bar under Section 25 of the Act. The Court took the view that the Order of Utilisation and possession in favour of the defendants-tenants, having been passed and implemented upon the death of the big land owner, Section 10B did not apply. It was found that the matter was governed by Section 10A(b). On this basis, it was found that the proceeding or Order, which was sought to be immunised under Section 25 of the Act, was not taken or made under the Act.30. This decision may not, on the facts of the present case, advance the case of the respondents.31. In Ramzani v. Abad Shah [in R.S.A. No. 1975 of 1971, decided on 13.11.1981], the learned Single Judge of the Punjab and Haryana High Court held that the jurisdiction of the Assistant Collector under Section 77 of the Tenancy Act was very limited. In the said case, the appellant had filed the Suit under Section 77 of the Tenancy Act, declaring him as the occupancy tenant. In the said proceeding, one of the issues, which arose was, whether respondent was grandson of one Ashiq Hussain. The Assistant Collector held in the negative, i.e., against the respondent. Thereafter, a Suit was filed in the Civil Court. The Court took the view that the earlier finding would not be res judicata.35. In Khazan Singh another v. Dalip Singh and another (in L.P.A. No. 623 of 1968, decided on 15.07.1969), a Division Bench of the Punjab and Haryana High Court, found that it is open to the Civil Court to go into the question as to whether the conditions required to be established before the Assistant Collector could exercise power under Section 18 of the Act, existed or not.Section 18, as already noticed, conferred right on the tenant to seek purchase of the land from the land owner. The Court repelled the contention based on Section 25 of the Act, which was pressed by the tenant that the Suit was not maintainable. The argument, which was advanced by the landlord was, when the matters relevant to Section 18 were in dispute, bar under Section 25, would not apply.36. In this context, it is necessary to notice the reasoning employed in the majority Judgment and also the view taken by the learned Chief Justice, who authored the dissenting view, in Amar Singh and others v. Dalip (1981) ILR 3 P&H 582 (in R.S.A. No. 1821 and 1822 of 1978, decided on 12.03.1981) which was considered by this Court in 1987 (4) SCC 410 RICHPAL SINGH (supra). We notice the following statement from the judgment forming the majority view:12. The question which then remains to be decided is as to whether the Revenue Court or Rent Controller has been invested with the jurisdiction under the Punjab Tenancy Act or the East Punjab Urban Rent Restriction Act, as the case may be, to decide the question of relationship of landlord and tenant or they are entitled incidentally to go into this matter for exercising the jurisdiction expressly invested in them under the said Acts. A perusal of section 77 of the Punjab Tenancy Act would show that the Revenue Court has been invested with the jurisdiction to decide certain dispute between the landlord and tenant which necessarily means that the existence of relationship of landlord and tenant between the parties is a condition precedent before any matter specified therein can be taken cognizance of by a Revenue Court. There is no provision in whole of the section which authorises the Revenue Court to pass a decree regarding the relationship of the parties. It is, therefore, obvious that the Revenue Court is only entitled to pronounce on the relationship between the parties for the purposes of deciding disputes within its cognizance enumerated in that section and the Legislature has not conferred any jurisdiction on the Revenue Court to pronounce finally on the jurisdictional facts, i.e., the existence of the relationship of landlord and tenant between the parties. The reason for not doing so is also not far to seek. The determination of the status of the parties or a question of title between them may involve very intricate questions of civil law. For example, the status of the landlord may depend on the proof- and validity of adoption or a will. Nobody can even suggest that the Revenue Court has jurisdiction to pronounce on the validity of adoption or a will or that such a decision could be final and binding on the parties. If that is so, then it has to be ruled that the Revenue Court has no jurisdiction to pronounce finally on the question of status of the parties or any other question of title because no distinction can be made between a simple question of title and question of title which involve intricate and complicated questions of law so far as the extent of jurisdiction is concerned. Further more, not a single decision has been cited at the bar wherein it may have been ruled that the decision of the Revenue Court under the, Punjab Tenancy Act on the question of title or status of the parties is final, and not open to challenge in a civil suit. On the contrary, as early as the year 1935, a Division Bench of the Lahore High Court in Mt. Harnam Kaur v. Narain Singh and others, MANU/LA/0285/1935: AIR 1935 Lah. 739 while interpreting the scope of the jurisdiction of the Revenue Court took the view that where a revenue suit is instituted for ejecting the tenants and this is the only jurisdiction exclusively vested in the Revenue Courts, that Court cannot determine the question of title in that case and its decision, therefore cannot operate so as to prevent the civil Courts from entertaining the subsequent suit which involves the question of title. This view has held the field for all these years and its correctness has never been doubted in any decision so far. A similar view was taken by a Full Bench of the Madras High Court in Pollapalli Venkatarama Rao and others v. Masunuru Verkayya and others, MANU/TN/0343/1954 : AIR 1954 Madras 788 while dealing with the question of exclusive jurisdiction of the Revenue Court under the Madras Estates Land Act (1 of 1908), which is evident from the following passage:If a particular matter is one which does not fall within the exclusive jurisdiction of the revenue court, then a decision of a revenue court on so much a matter, which might be incidentally given by the revenue court, cannot be binding on the parties in a civil court. One practical test would be to deter ne if that particular matter would not be matter in respect of which the civil court would have jurisdiction. To give an obvious instance, suppose in a suit under section 55 For the grant of a patta inst toted by a person calming to be the adopted son of the ryot who was a pattedar, the, landlord raises a plea that he is not entitled to the patta because his adoption is not valid. It may be that the revenue court would have to summarily go into the question whether the person suing is or is not the validly adopted son of the previous ryot. Can it possibly be said that the finding of the revenue court on the issue of adoption is binding on the parties in a subsequent suit in a civil court in which the validity of the adoption might fall to be decided? There can be no doubt about the answer.That is because the dispute as to the validity of the adoption is not a dispute in respect of which a revenue court has exclusive jurisdiction. Such a dispute is a matter well within the jurisdiction of a civil court. Therefore, it cannot be within the exclusive jurisdiction of the Revenue Court, and the decision of such a dispute by a revenue court cannot be binding in a civil court.37. In the dissenting opinion, the learned Chief Justice, on the other hand, formulated four questions, out of which, the second question, was as follows - II. If so, whether such a Revenue Court has the jurisdiction to decide the issue of relationship of landlord and tenant, if disputed before it? In answering this question, we notice that the court followed the Judgment of this Court under the Delhi Rent Control Act in Om Prakash Gupta v. Dr. Ratan Singh and another (1964) 1 SCR 259 and it was held as follows:38. Coming now to question No. (ii) aforesaid it appears to be now so well- settled by a precedent of the final Court and a string of Division Bench judgments of this Court that it would be wasteful to examine the issue on principle. In Om Parkash Gupta v. Dr. Rattan Singh and an others, 1963 P.L.R. 543. an identical question arose under the rent jurisdiction. It was contended before their Lordships that in a Tribunal of limited jurisdiction, like the Rent Controller, if the relationship of the landlord and tenant is denied then it has no jurisdiction to adjudicate thereon and must stay its hands forthwith. Categorically repelling the same it was observed as follows:.If a person moves a Controller for eviction of a person on the ground that he is a tenant who had, by his acts, or omissions, made himself liable to be evicted on any one of the grounds for eviction, and if the tenant denies that the plaintiff is the landlord, the Controller has to decide the question whether there was a relationship of landlord and tenant. If the Controller decides that there is no such relationship the proceeding has to be terminated, without deciding the main question in controversy namely, the question of eviction. If on the other hand, the Controller comes to the opposite conclusion and holds that the person seeking eviction was the landlord and the person in possession was the tenant the proceedings have to go on. Under section 15(4) of the Act the Controller is authorised to decide the question whether the claimant was entitled to an order for payment of rent, and if there is a dispute as to the person or persons to whom the rent is payable, he may direct the tenant to deposit with him the amount payable until the decision of the question as to who is entitled to that payment.............The Act proceeds on the assumption that there is such a relationship. If the relationship is denied, the authorities under the Act have to determine that question also because a simple denial of the relationship cannot oust the jurisdiction of the tribunals under the Act. True, they are tribunals of limited jurisdiction the scope of their power and authority being limited by the provisions of the Statute. But a simple denial of the relationship either by the alleged landlord or by the alleged tenant would not have the effect of oust-ting the jurisdiction of the authorities under the Act, because the simplest thing in the world would for the party interested to block the proceedings under the Act to deny the relationship of landlord and tenant. The tribunals under the Act being creatures of the Statute have limited jurisdiction and have to function within the four corners of the Statute creating them. But within the provisions of the Act, they are tribunals of exclusive jurisdiction and their orders are final and not liable to be questioned in collateral proceedings, like a separate suit or application in execution proceedings.The enunciation of the law aforesaid appears to me as categoric in laying down that even a persona designate, like the Rent Controller (see Messrs Pitmanss Shorthand Accadamy v. M/s. B. Lila Ram and sons) has the fullest jurisdiction to decide the question of the relationship of landlord and tenant when it is raised before it. That view has been unreservedly followed in this Court in a series of Division Bench decisions which at this stage may only be noticed chronologically, that it, Muni Lal v. Chandu Lal, 1968 PLR 473; Ambala Bus Syndicate (P) Ltd. v. M/s. Indra Motors Kurali, 1968 PLR 650 and J.G. Kohli v. Financial Commissioner Haryana and another, 1975 Rent Control Journal 689. In passing it may be noticed that some doubts about the correctness of the view in the aforesaid judgments was raised by a learned Single Judge which was considered in depth and the earlier view was reaffirmed afresh in the recent Division Bench judgment in Balbahadar and others v. Hindi Sahitya Sadhna, 1980 (1) Rent Control Journal 376, to which I was a party.38. We must notice that the learned Chief Justice, in the dissenting opinion, was of the view that even the dispute relating to existence of the landlord- tenant relationship could be decided by a Revenue Court. In fact, this Court, in Om Prakash (supra), deals with a situation, where by a simple denial of the landlord-tenant relationship, the proceedings under the Rent Act would be blocked.39. However, as already noticed, this Court, in the decision reported in Richpal Singh and others (supra), upheld the view of the majority. The dissenting view, which was essentially premised on Om Prakash (supra), was not approved.40. Though, the question arose in the context of the contention as to whether the matter was res judicata, this Court went on to hold, in paragraph 14, which we have already adverted to, that when the nature of relationship between landlord and tenant was in dispute, the Revenue Court, under the Tenancy Act, has no jurisdiction.41. In paragraph-15, the Court proceeded to reject the contention of the finding being res judicata. The question was whether the Revenue Court could go into the question, whether the respondent therein was a tenant or mortgagee. It was found that the Revenue Court could not do so. The Judgment in Richpal Singh (supra) was decided after considering the Judgment in Om Prakash (supra), which took the view that the Rent Control Courts power could not be frustrated by mere taking of the plea disputing the landlord-tenant relationship.42. In this regard, we have noticed, the view of the Judges in the Majority Judgment. The Majority Judgment proceeded on the basis that there was no provision in Section 77 of the Tenancy Act, which authorised the Revenue Court to pass a Decree regarding the relationship of the party. However, it has also pronounced that the Revenue Court was entitled to pronounce on the relationship for the purpose of deciding the dispute within its jurisdiction. But it was not conferred with power to finally decide on the same. The dispute relating to landlord-tenant relationship can arise in various circumstances, as noticed in the Majority Judgment.43. Therefore, it is not, as if, if there is indisputable material or binding admission and, which, without raising any debatable dispute at all, established the landlord-tenant relationship, the Revenue Court cannot decide the matter, which it is ordained to decide as part of its duty to decide the case for eviction, inter alia. However, what has been laid down is that, the Civil Court would continue to have jurisdiction to finally pronounce on a question of landlord-tenant relationship despite the bar under Section 77(3) of the Tenancy Act.48. There are two aspects which emerge. The first aspect is that the Assistant Collector acting under Section 14A read with Section 10 (2) must given a reasonable opportunity to the tenant and determine the dispute summarily. This is an important pointer to the nature of the power which is exercised by the Assistant Collector. We must bear in mind the principle which has been noticed by this court in MAGITI SASAMAL (supra). In a case of a dispute raised by the tenant about the very existence of the landlord-tenant relationship, in a provision which contemplates evicting a person who is the tenant, the duty to render a summary decision appears incongruous with the imperative need for the authority to the able to unravel the many dimensions of a dispute which is genuinely raised by the tenant about there being a landlord-tenant relationship. In other words what is to be rendered is a summary decision and we would neither be doing justice to the nature of the power enjoyed by the Assistant Collector as also the right of a party to seek redress in a Civil Court otherwise, unless the power of the Civil Court is preserved.49. The other aspect no doubt which emerges is Section 10 (3) which contemplates proceedings in relation to the same matter in any other court or authority being stayed, when such court or authority is informed by the Assistant Collector of having received an application under Section 14A read with Section 10. The law giver has however provided that the Assistant Collector must proceed with the application but determine the dispute summarily. Upon the dispute being determined by the Assistant Collector the proceedings which were stayed by the court or any other authority would lapse. This sub section gives the impression that the powers of the Assistant Collector are meant to be exhaustive.50. We would hold the true effect of Section 10 (2) and (3) read with Section 14A is as follows. An application for ejectment of a tenant is to be made before the Assistant Collector under Section 14A. Such an application is to be decided after giving notice and it is to be decided summarily. Since the exclusive power to decide the application to evict the tenant has been conferred on the Assistant Collector, the law giver has further contemplated that after receipt of such an application by the Assistant Collector no other court or authority is to proceed with any case relating to the same matter upon being informed by the Assistant Collector of the receipt of the application under Section 14A. What is more such proceeding is to be lapse after the determination of the dispute by the Assistant Collector. The law giver no doubt does contemplate an exclusive and expeditious remedy for the landlord to seek eviction brooking no over lapping of jurisdiction by exercise of power by any other court or authority on a parallel basis. However, this provision cannot mean that when the very existence landlord-tenant relationship is brought under a cloud by the tenant raising a dispute then the very premise on which the exclusive jurisdiction conferred on the Assistant Collector is not overturned. In other words, the law giver has proceeded on the basis that the Assistant Collector is clothed with the power to decide a matter relating to eviction in a summary fashion. This would be inconsistent with scenario where the very existence of the landlord-tenant relationship is disputed. The law giver in other words proceeds on an assumption that the application made by the landlord is against a person who is indeed the tenant.51. We will however proceed on the basis that what is contemplated is that during the pendency of the proceeding before the Assistant Collector even a suit in a civil court where the title of the landlord is questioned or in other words there is a challenge thrown to the very existence of the landlord-tenant relationship is not permitted. Even in such a scenario after the conclusion of the proceeding, in the light of the decisions of this court starting with MAGITI SASAMAL (supra) RAJA DURGA SINGH (supra) AND RICHPAL SINGH (supra), would apply and the bar under Section 25 would not available. The Civil Court would have the power in a case where without it being a frivolous challenge to the landlord tenant-relationship, in a genuine dispute relating to landlord-tenant relationship, the orders passed by the authorities under the Act can be found to be null and void for the reason that transgressing the power conferred, the authorities proceed to decide the matter, (which again it must be remembered under Section 10 (2) is to be a summary decision) which is the vexed issue relating to the very existence of the landlord-tenant relationship.52. The words used in Section 25 of the Act, as already noticed, is that except in accordance with the provisions of the Act, the validity of any proceeding or Order, taken or made under the Act, cannot be questioned in any Court or before any other Authority. In the dissenting opinion, Justice R.S. Sarkaria, in Amar Singh and another (supra), has explained the scope of the expression except in accordance with the provisions of the Act, with reference to Section 24 of the Act. In other words, an Order passed under Section 14A, could be challenged by way of an Appeal, Review and Revision, as provided in the Tenancy Act, adverted to in Section 24 of the Act. This explained, the question perseveres, however, as to whether the validity of proceeding or Order passed, is beyond challenge in a Civil Court, under circumstances analogous to that obtaining, with reference to a proceeding under Section 77 of the Tenancy Act. In other words, Section 77 of the Tenancy Act, inter alia, provided for seeking eviction of a tenant before the Revenue Officer. Section 14A of the Act, similarly, confers powers upon the Revenue Officer, to entertain an application for evicting a tenant.53. The principles relating to exclusion of Civil Courts jurisdiction are well-settled. Ouster of the jurisdiction of the Civil Court is not readily inferred. In the scheme of the Tenancy Act also, an Order under Section 77 could be subjected to Appeal, Review and Revision, as provided in the Act. Section 77(3) of the Tenancy Act, purported to confer exclusive power on the Revenue Court to decide certain disputes and ousted jurisdiction of courts. This included the proceeding to evict the tenant. In other words, Civil Court could not entertain the application to evict a tenant. It is in this statutory framework that this Court has stated the view that if a landlord-tenant relationship is disputed, despite the exclusive jurisdiction conferred on the Revenue Court, to even Order eviction of a tenant, the Civil Court would still retain jurisdiction in a case where there is a dispute relating to landlord-tenant relationship. The Act was enacted in 1953. As noticed by us, Section 14A of the Act, provided for the eviction of a tenant notwithstanding anything contained in any other law. Therefore, apart from the fact that it became an exhaustive catalogue of circumstances, entitling the landlord to launch proceedings for eviction and also further designating the Statutory Authority, before which, it could be filed, it provided for a bar to challenge the validity of the orders passed, except by way of the remedies provided under the Tenancy Act. There would not be any justification for revisiting the principle laid down that when the relationship between landlord and tenant is contested, the Civil Court continue to have the jurisdiction despite the bar under Section 25 of the Act. We see no reason to hold that the validity of the Order passed by the Assistant Collector, as may be affirmed in Appeal, Review or Revision, cannot be questioned in a Civil Court, if the expression validity is conflated with legality. In other words, if an Order is illegal, it would be invalid. The illegality of an Order can arise out of various causes. An Order may be illegal, and therefore, invalid, on the ground that the Author of the Order, in this case, the Authorities designated under Section 14A, did not have the power to decide the issue. We are in this case concerned with illegality due to absence of power. We are not called upon to decide the position, where the Authority, under the Act, violates the fundamental procedure relating to natural justice and the Civil Court is invited to sit in Judgment over the same. What we find, is that, the expression validity of the decision or the Order in Section 25 of the Act, would not include a case where, despite a dispute projected, that there was no landlord-tenant relationship, the Authority decides the said issue in the course of the Order of Eviction, under Section 14A, after brushing aside the tenants objection relating to his position, viz., that he is not a tenant. In such a situation, the validity is tied-up with the fundamental aspect of absence of power of the Authority to decide on the question of landlord-tenant relationship. We must clarify, therefore, that the validity of the orders under Section 14A is open to scrutiny in a Civil Court, in a situation, when the tenant denies and disputes the case of the landlord that there is a landlord-tenant relationship. We must, however, further hold that a mere plea by the tenant, should not lead, without anything more, to render the Authorities helpless and bereft of power to order eviction. In a situation, where, the Authority finds the plea of the tenant to be completely frivolous and mere attempt at blocking the proceedings, the validity enacted under Section 25, cannot be diluted. The position must be understood as that the power to decide, cannot be assigned to the Authorities under the Act, of the existence of the landlord-tenant relationship, as noted hereinbefore.54. In the facts of this case, we have noticed the nature of the contention. Even the case of the appellants is that of failure to pay rent by the respondent-tenant. The tenant claims to be a tenant under the Mandir, which has been found to be the owner of the property. Appellants claim under an assignment made by the Mahant, who has been found to be without Authority to convey any right to the appellants. | 0 | 13,976 | 6,747 | ### Instruction:
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dispute relating to landlord-tenant relationship, the orders passed by the authorities under the Act can be found to be null and void for the reason that transgressing the power conferred, the authorities proceed to decide the matter, (which again it must be remembered under Section 10 (2) is to be a summary decision) which is the vexed issue relating to the very existence of the landlord-tenant relationship. 52. The words used in Section 25 of the Act, as already noticed, is that except in accordance with the provisions of the Act, the validity of any proceeding or Order, taken or made under the Act, cannot be questioned in any Court or before any other Authority. In the dissenting opinion, Justice R.S. Sarkaria, in Amar Singh and another (supra), has explained the scope of the expression except in accordance with the provisions of the Act, with reference to Section 24 of the Act. In other words, an Order passed under Section 14A, could be challenged by way of an Appeal, Review and Revision, as provided in the Tenancy Act, adverted to in Section 24 of the Act. This explained, the question perseveres, however, as to whether the validity of proceeding or Order passed, is beyond challenge in a Civil Court, under circumstances analogous to that obtaining, with reference to a proceeding under Section 77 of the Tenancy Act. In other words, Section 77 of the Tenancy Act, inter alia, provided for seeking eviction of a tenant before the Revenue Officer. Section 14A of the Act, similarly, confers powers upon the Revenue Officer, to entertain an application for evicting a tenant. 53. The principles relating to exclusion of Civil Courts jurisdiction are well-settled. Ouster of the jurisdiction of the Civil Court is not readily inferred. In the scheme of the Tenancy Act also, an Order under Section 77 could be subjected to Appeal, Review and Revision, as provided in the Act. Section 77(3) of the Tenancy Act, purported to confer exclusive power on the Revenue Court to decide certain disputes and ousted jurisdiction of courts. This included the proceeding to evict the tenant. In other words, Civil Court could not entertain the application to evict a tenant. It is in this statutory framework that this Court has stated the view that if a landlord-tenant relationship is disputed, despite the exclusive jurisdiction conferred on the Revenue Court, to even Order eviction of a tenant, the Civil Court would still retain jurisdiction in a case where there is a dispute relating to landlord-tenant relationship. The Act was enacted in 1953. As noticed by us, Section 14A of the Act, provided for the eviction of a tenant notwithstanding anything contained in any other law. Therefore, apart from the fact that it became an exhaustive catalogue of circumstances, entitling the landlord to launch proceedings for eviction and also further designating the Statutory Authority, before which, it could be filed, it provided for a bar to challenge the validity of the orders passed, except by way of the remedies provided under the Tenancy Act. There would not be any justification for revisiting the principle laid down that when the relationship between landlord and tenant is contested, the Civil Court continue to have the jurisdiction despite the bar under Section 25 of the Act. We see no reason to hold that the validity of the Order passed by the Assistant Collector, as may be affirmed in Appeal, Review or Revision, cannot be questioned in a Civil Court, if the expression validity is conflated with legality. In other words, if an Order is illegal, it would be invalid. The illegality of an Order can arise out of various causes. An Order may be illegal, and therefore, invalid, on the ground that the Author of the Order, in this case, the Authorities designated under Section 14A, did not have the power to decide the issue. We are in this case concerned with illegality due to absence of power. We are not called upon to decide the position, where the Authority, under the Act, violates the fundamental procedure relating to natural justice and the Civil Court is invited to sit in Judgment over the same. What we find, is that, the expression validity of the decision or the Order in Section 25 of the Act, would not include a case where, despite a dispute projected, that there was no landlord-tenant relationship, the Authority decides the said issue in the course of the Order of Eviction, under Section 14A, after brushing aside the tenants objection relating to his position, viz., that he is not a tenant. In such a situation, the validity is tied-up with the fundamental aspect of absence of power of the Authority to decide on the question of landlord-tenant relationship. We must clarify, therefore, that the validity of the orders under Section 14A is open to scrutiny in a Civil Court, in a situation, when the tenant denies and disputes the case of the landlord that there is a landlord-tenant relationship. We must, however, further hold that a mere plea by the tenant, should not lead, without anything more, to render the Authorities helpless and bereft of power to order eviction. In a situation, where, the Authority finds the plea of the tenant to be completely frivolous and mere attempt at blocking the proceedings, the validity enacted under Section 25, cannot be diluted. The position must be understood as that the power to decide, cannot be assigned to the Authorities under the Act, of the existence of the landlord-tenant relationship, as noted hereinbefore. 54. In the facts of this case, we have noticed the nature of the contention. Even the case of the appellants is that of failure to pay rent by the respondent-tenant. The tenant claims to be a tenant under the Mandir, which has been found to be the owner of the property. Appellants claim under an assignment made by the Mahant, who has been found to be without Authority to convey any right to the appellants.
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in a genuine dispute relating to landlord-tenant relationship, the orders passed by the authorities under the Act can be found to be null and void for the reason that transgressing the power conferred, the authorities proceed to decide the matter, (which again it must be remembered under Section 10 (2) is to be a summary decision) which is the vexed issue relating to the very existence of the landlord-tenant relationship.52. The words used in Section 25 of the Act, as already noticed, is that except in accordance with the provisions of the Act, the validity of any proceeding or Order, taken or made under the Act, cannot be questioned in any Court or before any other Authority. In the dissenting opinion, Justice R.S. Sarkaria, in Amar Singh and another (supra), has explained the scope of the expression except in accordance with the provisions of the Act, with reference to Section 24 of the Act. In other words, an Order passed under Section 14A, could be challenged by way of an Appeal, Review and Revision, as provided in the Tenancy Act, adverted to in Section 24 of the Act. This explained, the question perseveres, however, as to whether the validity of proceeding or Order passed, is beyond challenge in a Civil Court, under circumstances analogous to that obtaining, with reference to a proceeding under Section 77 of the Tenancy Act. In other words, Section 77 of the Tenancy Act, inter alia, provided for seeking eviction of a tenant before the Revenue Officer. Section 14A of the Act, similarly, confers powers upon the Revenue Officer, to entertain an application for evicting a tenant.53. The principles relating to exclusion of Civil Courts jurisdiction are well-settled. Ouster of the jurisdiction of the Civil Court is not readily inferred. In the scheme of the Tenancy Act also, an Order under Section 77 could be subjected to Appeal, Review and Revision, as provided in the Act. Section 77(3) of the Tenancy Act, purported to confer exclusive power on the Revenue Court to decide certain disputes and ousted jurisdiction of courts. This included the proceeding to evict the tenant. In other words, Civil Court could not entertain the application to evict a tenant. It is in this statutory framework that this Court has stated the view that if a landlord-tenant relationship is disputed, despite the exclusive jurisdiction conferred on the Revenue Court, to even Order eviction of a tenant, the Civil Court would still retain jurisdiction in a case where there is a dispute relating to landlord-tenant relationship. The Act was enacted in 1953. As noticed by us, Section 14A of the Act, provided for the eviction of a tenant notwithstanding anything contained in any other law. Therefore, apart from the fact that it became an exhaustive catalogue of circumstances, entitling the landlord to launch proceedings for eviction and also further designating the Statutory Authority, before which, it could be filed, it provided for a bar to challenge the validity of the orders passed, except by way of the remedies provided under the Tenancy Act. There would not be any justification for revisiting the principle laid down that when the relationship between landlord and tenant is contested, the Civil Court continue to have the jurisdiction despite the bar under Section 25 of the Act. We see no reason to hold that the validity of the Order passed by the Assistant Collector, as may be affirmed in Appeal, Review or Revision, cannot be questioned in a Civil Court, if the expression validity is conflated with legality. In other words, if an Order is illegal, it would be invalid. The illegality of an Order can arise out of various causes. An Order may be illegal, and therefore, invalid, on the ground that the Author of the Order, in this case, the Authorities designated under Section 14A, did not have the power to decide the issue. We are in this case concerned with illegality due to absence of power. We are not called upon to decide the position, where the Authority, under the Act, violates the fundamental procedure relating to natural justice and the Civil Court is invited to sit in Judgment over the same. What we find, is that, the expression validity of the decision or the Order in Section 25 of the Act, would not include a case where, despite a dispute projected, that there was no landlord-tenant relationship, the Authority decides the said issue in the course of the Order of Eviction, under Section 14A, after brushing aside the tenants objection relating to his position, viz., that he is not a tenant. In such a situation, the validity is tied-up with the fundamental aspect of absence of power of the Authority to decide on the question of landlord-tenant relationship. We must clarify, therefore, that the validity of the orders under Section 14A is open to scrutiny in a Civil Court, in a situation, when the tenant denies and disputes the case of the landlord that there is a landlord-tenant relationship. We must, however, further hold that a mere plea by the tenant, should not lead, without anything more, to render the Authorities helpless and bereft of power to order eviction. In a situation, where, the Authority finds the plea of the tenant to be completely frivolous and mere attempt at blocking the proceedings, the validity enacted under Section 25, cannot be diluted. The position must be understood as that the power to decide, cannot be assigned to the Authorities under the Act, of the existence of the landlord-tenant relationship, as noted hereinbefore.54. In the facts of this case, we have noticed the nature of the contention. Even the case of the appellants is that of failure to pay rent by the respondent-tenant. The tenant claims to be a tenant under the Mandir, which has been found to be the owner of the property. Appellants claim under an assignment made by the Mahant, who has been found to be without Authority to convey any right to the appellants.
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Messrs Mela Ram & Sons Vs. The Commissioner Of Income-Tax,Punjab | 30 (2). Now, those observations came to be made by way of answer to a new contention put forward by the learned Attorney-General in support of the appeal. That contention was that the miscellaneous application presented to the Tribunal might be treated as an appeal against the order dated 19-11-1945, in which case the order passed thereon on 20-2-1946 would fall under S. 33 (4) and the reference would be competent. In disagreeing with this contention, this Court observed that the appeal to the Appellate Assistant Commissioner was incompetent under S. 30 (1), that even if it was competent, the order dated 19-11-1945 was not contemplated by S. 31 and there could be no appeal against such an order under S. 33(1). Now it should be noticed that the question actually referred under S. 66 (1) was the correctness and legality of the order passed in a miscellaneous application and not of any order made in an appeal preferred under S. 33 (1). In this context, the point sought to be raised by the learned Attorney-General did not arise at all for decision, and the observations in answer thereto cannot be read as a pronouncement on the question of the maintainability of the appeal, much less as a decision that an order dismissing an appeal as barred by limitation is one under S. 30(2). Accordingly, the question whether an order dismissing an appeal as barred by limitation falls under S. 30 (2) or S. 31 remains unaffected by the observations in 1953 SC 118 (AIR V 40) (P).13. Then against, under the provisions of the Act, limitation is not the only preliminary ground on which an appeal could be disposed of without a consideration of the merits. Section 30(3) provides that an "appeal shall be in the prescribed form and shall be verified in the prescribed manner". If that Appellate Assistant Commissioner holds that the appeal does not comply with the requirements of this enactment and rejects it on that ground, the order must be one made under S. 31, since S. 30(3) makes no provision for such an order, as does S. 30 (2) in the case of limitation. All the orders under S. 31 being appealable under S. 33, the order of dismissal for non-compliance with S. 30(3) must also be appealable and it was so decided in - Gyan Manjari Kuari v. Commr. of Income-tax, 1944 Pat 112 (AIR V 31) (Q). How is this view to be reconciled with the contention that S. 31 contemplates only orders on the merits of the assessment and not on preliminary issues? Vide also the decision in - Ananda v. Commr. of Income-tax, 1931 Pat 306 (AIR V 18) (FB) (R), which was followed in 1944 Pat 112 (AIR V 31) (Q) and in - Ramnarayana Das v. Commr. of Income-tax, 1950 Orissa 205 (AIR V 37) (S). There is thus abundant authority for the position that S. 31 should be liberally construed so as to include not only orders passed on a consideration of the merits of the assessment but also orders which dispose of the appeal on preliminary issues, such as limitation and the like.14. The learned Solicitor-General sought to get over these decisions by taking up the position that S. 31 (3) (a) construed in its literal and ordinary sense conferred jurisdiction on the Appellate Assistant Commissioner only to pass orders on the merits of the assessment, that it was not therefore open to him to entertain any question which did not directly relate to such merits, and that accordingly he could not hear or decide any issue of a preliminary nature such as limitation and dispose of the appeal on the basis of the finding on that issue. He conceded that this contention would run counter to numerous authorities, but argued that they were all wrong. Having given due consideration to this contention we are of opinion that it is not well founded.15. Taking the plea of limitation - which is what we are concerned with in this appeal - when there is a judgment or order against which the statute provides a right of appeal but none is preferred within the time prescribed therefor, the respondent acquires a valuable right, of which he cannot be deprived by an order condoning delay and admitting the appeal behind his back. And when such an order is passed exparte, he has aright to challenge its correctness at the hearing of the appeal. That is the position under the general law (vide - Krishnasami v. Ramasami, 1917 PC 179 (AIR V 4) (T), and there is nothing in the provisions of the Income-tax Act, which enacts a different principle. Therefore, if an appeal is admitted without the fact of delay in presentation having been noticed, clearly it must be open to the Department to raise the objection at the time of the hearing of the appeal. That would also appear to be the practice obtaining before the Income-tax Tribunal as appear from the decisions cited before us, and that, in our opinion, is right.Similar considerations would apply to other objections of a preliminary character, such as one based on S. 30, sub-s (3). We should be slow to adopt a construction which deprives parties of valuable rights. We are therefore of opinion that contentions relating to preliminary issues are open to consideration at the time of the hearing of the appeal, and that the jurisdiction of the Appellate Assistant Commissioner is not limited to the hearing of the appeal on the merits of the assessment only. In this view, the orders of the Appellate Assistant Commissioner holding that there were no sufficient reasons for excusing the delay and rejecting the appeals as time-barred would be orders passed under S. 31 and would be open to appeal, and it would make no difference in the position whether the order of dismissal is made before or after the appeal is admitted.16. The question referred must accordingly be answered in the affirmative. | 1[ds]In this context, the point sought to be raised by the learned Attorney-General did not arise at all for decision, and the observations in answer thereto cannot be read as a pronouncement on the question of the maintainability of the appeal, much less as a decision that an order dismissing an appeal as barred by limitation is one under S. 30(2). Accordingly, the question whether an order dismissing an appeal as barred by limitation falls under S. 30 (2) or S. 31 remains unaffected by the observations in 1953 SC 118 (AIR V 40) (P).13. Then against, under the provisions of the Act, limitation is not the only preliminary ground on which an appeal could be disposed of without a consideration of the merits. Section 30(3) provides that an "appeal shall be in the prescribed form and shall be verified in the prescribed manner". If that Appellate Assistant Commissioner holds that the appeal does not comply with the requirements of this enactment and rejects it on that ground, the order must be one made under S. 31, since S. 30(3) makes no provision for such an order, as does S. 30 (2) in the case ofis thus abundant authority for the position that S. 31 should be liberally construed so as to include not only orders passed on a consideration of the merits of the assessment but also orders which dispose of the appeal on preliminary issues, such as limitation and the like.14. The learned Solicitor-General sought to get over these decisions by taking up the position that S. 31 (3) (a) construed in its literal and ordinary sense conferred jurisdiction on the Appellate Assistant Commissioner only to pass orders on the merits of the assessment, that it was not therefore open to him to entertain any question which did not directly relate to such merits, and that accordingly he could not hear or decide any issue of a preliminary nature such as limitation and dispose of the appeal on the basis of the finding on thatconceded that this contention would run counter to numerous authorities, but argued that they were all wrong. Having given due consideration to this contention we are of opinion that it is not well founded.15. Taking the plea of limitation - which is what we are concerned with in this appeal - when there is a judgment or order against which the statute provides a right of appeal but none is preferred within the time prescribed therefor, the respondent acquires a valuable right, of which he cannot be deprived by an order condoning delay and admitting the appeal behind hiswhen such an order is passed exparte, he has aright to challenge its correctness at the hearing of the appeal. That is the position under the general law (vide - Krishnasami v. Ramasami, 1917 PC 179 (AIR V 4) (T), and there is nothing in the provisions of the Income-tax Act, which enacts a differentif an appeal is admitted without the fact of delay in presentation having been noticed, clearly it must be open to the Department to raise the objection at the time of the hearing of the appeal. That would also appear to be the practice obtaining before the Income-tax Tribunal as appear from the decisions cited before us, and that, in our opinion, is right.Similar considerations would apply to other objections of a preliminary character, such as one based on S. 30, sub-s (3). We should be slow to adopt a construction which deprives parties of valuable rights. We are therefore of opinion that contentions relating to preliminary issues are open to consideration at the time of the hearing of the appeal, and that the jurisdiction of the Appellate Assistant Commissioner is not limited to the hearing of the appeal on the merits of the assessmentthis view, the orders of the Appellate Assistant Commissioner holding that there were no sufficient reasons for excusing the delay and rejecting the appeals as time-barred would be orders passed under S. 31 and would be open to appeal, and it would make no difference in the position whether the order of dismissal is made before or after the appeal is admitted.16. The question referred must accordingly be answered in the affirmative. | 1 | 5,664 | 782 | ### 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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30 (2). Now, those observations came to be made by way of answer to a new contention put forward by the learned Attorney-General in support of the appeal. That contention was that the miscellaneous application presented to the Tribunal might be treated as an appeal against the order dated 19-11-1945, in which case the order passed thereon on 20-2-1946 would fall under S. 33 (4) and the reference would be competent. In disagreeing with this contention, this Court observed that the appeal to the Appellate Assistant Commissioner was incompetent under S. 30 (1), that even if it was competent, the order dated 19-11-1945 was not contemplated by S. 31 and there could be no appeal against such an order under S. 33(1). Now it should be noticed that the question actually referred under S. 66 (1) was the correctness and legality of the order passed in a miscellaneous application and not of any order made in an appeal preferred under S. 33 (1). In this context, the point sought to be raised by the learned Attorney-General did not arise at all for decision, and the observations in answer thereto cannot be read as a pronouncement on the question of the maintainability of the appeal, much less as a decision that an order dismissing an appeal as barred by limitation is one under S. 30(2). Accordingly, the question whether an order dismissing an appeal as barred by limitation falls under S. 30 (2) or S. 31 remains unaffected by the observations in 1953 SC 118 (AIR V 40) (P).13. Then against, under the provisions of the Act, limitation is not the only preliminary ground on which an appeal could be disposed of without a consideration of the merits. Section 30(3) provides that an "appeal shall be in the prescribed form and shall be verified in the prescribed manner". If that Appellate Assistant Commissioner holds that the appeal does not comply with the requirements of this enactment and rejects it on that ground, the order must be one made under S. 31, since S. 30(3) makes no provision for such an order, as does S. 30 (2) in the case of limitation. All the orders under S. 31 being appealable under S. 33, the order of dismissal for non-compliance with S. 30(3) must also be appealable and it was so decided in - Gyan Manjari Kuari v. Commr. of Income-tax, 1944 Pat 112 (AIR V 31) (Q). How is this view to be reconciled with the contention that S. 31 contemplates only orders on the merits of the assessment and not on preliminary issues? Vide also the decision in - Ananda v. Commr. of Income-tax, 1931 Pat 306 (AIR V 18) (FB) (R), which was followed in 1944 Pat 112 (AIR V 31) (Q) and in - Ramnarayana Das v. Commr. of Income-tax, 1950 Orissa 205 (AIR V 37) (S). There is thus abundant authority for the position that S. 31 should be liberally construed so as to include not only orders passed on a consideration of the merits of the assessment but also orders which dispose of the appeal on preliminary issues, such as limitation and the like.14. The learned Solicitor-General sought to get over these decisions by taking up the position that S. 31 (3) (a) construed in its literal and ordinary sense conferred jurisdiction on the Appellate Assistant Commissioner only to pass orders on the merits of the assessment, that it was not therefore open to him to entertain any question which did not directly relate to such merits, and that accordingly he could not hear or decide any issue of a preliminary nature such as limitation and dispose of the appeal on the basis of the finding on that issue. He conceded that this contention would run counter to numerous authorities, but argued that they were all wrong. Having given due consideration to this contention we are of opinion that it is not well founded.15. Taking the plea of limitation - which is what we are concerned with in this appeal - when there is a judgment or order against which the statute provides a right of appeal but none is preferred within the time prescribed therefor, the respondent acquires a valuable right, of which he cannot be deprived by an order condoning delay and admitting the appeal behind his back. And when such an order is passed exparte, he has aright to challenge its correctness at the hearing of the appeal. That is the position under the general law (vide - Krishnasami v. Ramasami, 1917 PC 179 (AIR V 4) (T), and there is nothing in the provisions of the Income-tax Act, which enacts a different principle. Therefore, if an appeal is admitted without the fact of delay in presentation having been noticed, clearly it must be open to the Department to raise the objection at the time of the hearing of the appeal. That would also appear to be the practice obtaining before the Income-tax Tribunal as appear from the decisions cited before us, and that, in our opinion, is right.Similar considerations would apply to other objections of a preliminary character, such as one based on S. 30, sub-s (3). We should be slow to adopt a construction which deprives parties of valuable rights. We are therefore of opinion that contentions relating to preliminary issues are open to consideration at the time of the hearing of the appeal, and that the jurisdiction of the Appellate Assistant Commissioner is not limited to the hearing of the appeal on the merits of the assessment only. In this view, the orders of the Appellate Assistant Commissioner holding that there were no sufficient reasons for excusing the delay and rejecting the appeals as time-barred would be orders passed under S. 31 and would be open to appeal, and it would make no difference in the position whether the order of dismissal is made before or after the appeal is admitted.16. The question referred must accordingly be answered in the affirmative.
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In this context, the point sought to be raised by the learned Attorney-General did not arise at all for decision, and the observations in answer thereto cannot be read as a pronouncement on the question of the maintainability of the appeal, much less as a decision that an order dismissing an appeal as barred by limitation is one under S. 30(2). Accordingly, the question whether an order dismissing an appeal as barred by limitation falls under S. 30 (2) or S. 31 remains unaffected by the observations in 1953 SC 118 (AIR V 40) (P).13. Then against, under the provisions of the Act, limitation is not the only preliminary ground on which an appeal could be disposed of without a consideration of the merits. Section 30(3) provides that an "appeal shall be in the prescribed form and shall be verified in the prescribed manner". If that Appellate Assistant Commissioner holds that the appeal does not comply with the requirements of this enactment and rejects it on that ground, the order must be one made under S. 31, since S. 30(3) makes no provision for such an order, as does S. 30 (2) in the case ofis thus abundant authority for the position that S. 31 should be liberally construed so as to include not only orders passed on a consideration of the merits of the assessment but also orders which dispose of the appeal on preliminary issues, such as limitation and the like.14. The learned Solicitor-General sought to get over these decisions by taking up the position that S. 31 (3) (a) construed in its literal and ordinary sense conferred jurisdiction on the Appellate Assistant Commissioner only to pass orders on the merits of the assessment, that it was not therefore open to him to entertain any question which did not directly relate to such merits, and that accordingly he could not hear or decide any issue of a preliminary nature such as limitation and dispose of the appeal on the basis of the finding on thatconceded that this contention would run counter to numerous authorities, but argued that they were all wrong. Having given due consideration to this contention we are of opinion that it is not well founded.15. Taking the plea of limitation - which is what we are concerned with in this appeal - when there is a judgment or order against which the statute provides a right of appeal but none is preferred within the time prescribed therefor, the respondent acquires a valuable right, of which he cannot be deprived by an order condoning delay and admitting the appeal behind hiswhen such an order is passed exparte, he has aright to challenge its correctness at the hearing of the appeal. That is the position under the general law (vide - Krishnasami v. Ramasami, 1917 PC 179 (AIR V 4) (T), and there is nothing in the provisions of the Income-tax Act, which enacts a differentif an appeal is admitted without the fact of delay in presentation having been noticed, clearly it must be open to the Department to raise the objection at the time of the hearing of the appeal. That would also appear to be the practice obtaining before the Income-tax Tribunal as appear from the decisions cited before us, and that, in our opinion, is right.Similar considerations would apply to other objections of a preliminary character, such as one based on S. 30, sub-s (3). We should be slow to adopt a construction which deprives parties of valuable rights. We are therefore of opinion that contentions relating to preliminary issues are open to consideration at the time of the hearing of the appeal, and that the jurisdiction of the Appellate Assistant Commissioner is not limited to the hearing of the appeal on the merits of the assessmentthis view, the orders of the Appellate Assistant Commissioner holding that there were no sufficient reasons for excusing the delay and rejecting the appeals as time-barred would be orders passed under S. 31 and would be open to appeal, and it would make no difference in the position whether the order of dismissal is made before or after the appeal is admitted.16. The question referred must accordingly be answered in the affirmative.
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Bhanwar Lal And Anr Vs. Regional Settlement Commissioner, Jaipur, Cum-Custodian | in 1931, that the mortgagees had been in possession of the property, that they did not get any notice of the proceedings taken by the Assistant Custodian and were informed of his order in 1959 by their tenants in the land in suit when the allottees of the land were taking steps to recover possession. The writ petition was dismissed by the High Court which held that the issue of notice to Hazari and Magha was sufficient compliance with the requirements of sub-section (1) of S. 7 of the Act as the custodian had not to make any preliminary enquiry about the persons who might be interested in the property of the alleged evacuee. It is against this order that Bhanwar Lal and Rati Ram have filed this appeal by special leave. 3. Section 7(1) of the Act reads:"Where the Custodian is of opinion that any property is evacuee property within the meaning of this Act, he may, after causing notice thereof to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property." The Custodian can form his opinion about any property having become evacuee property on the basis of information available to him. It has been so held in Abdul Hakim Khan v. Regional Settlement Commissioner, 1962-1 SCR 531 : (AIR 1961 SC 1391 ). He can issue notice to the persons interested also on the basis of information available to him. He is not expected to hold a general inquiry of the persons interested in the alleged evacuee property. In the present case it appears that the village records about the land in suit which is agricultural, recorded the names of Hazari and Magha as mortgages and that the Assistant Custodian could consider them to be the persons interested. He could have had no information whether these mortgagees who resided at some other place were alive or not. He complied with the requirements of sub-section (1) of S. 7 to give a notice to Hazari and Magha. The notice however was ineffective and not good as Hazari and Magha had died long before. The question then arises whether the further proceedings on the basis of this notice could affect the interests of the mortgagees. 4. The interest of Ibrahim and others, the evacuees of the property in suit which was under mortgage, consisted of the equity of redemption in the property. It is this interest of theirs which could be declared evacuee property and the order of the Assistant Custodian dated April 7, 1955, declaring the aforesaid property to be evacuee property, really amounts to an order declaring the right of Ibrahim and others in the equity of redemption evacuee property. The order cannot affect the mortgagee rights as Ibrahim and others had no interest in the mortgagee rights. 5. It follows that the impugned order does not affect the rights of the appellants if any as mortgagees. The non-issue of the notice to the appellants therefore is of no consequence as the order subsequently passed without the issue of the notice to them does not affect their interest. 6. Reference in this connection may again be made to Abdul Hakim Khans Case, 1962-1 SCR 531 : (AIR 1961 SC 1391 ). In that case a number of persons had shares in certain property. Some of them migrated to Pakistan. The notice under S. 7 (1) was issued to one of those persons who had not migrated to Pakistan. The Custodian declared the property of those who had migrated to be evacuee property and specified their share in the property. The other co-shares except the one to whom the notice was issued, challenged the validity of the order passed under S. 11 of the Evacuee Interest (Separation ) Act, 1951 (Act LIV of 1951) vesting the entire property in the Custodian. This Court held that the objectors could not challenge the validity of the order under S. 7 of the Act as it did not affect their rights in the property. Similarly it can be said that the appellants in this case cannot challenge the validity of the proceedings on the notice issued by the Assistant Custodian and the order of the Assistant Custodian declaring the property in suit to be evacuee property when that order does not affect the mortgagee rights of the appellants. 7. By virtue of the order dated April 7, 1955, the rights of the evacuees in the property in suit vest in the Custodian and those rights, as stated earlier, consist of the rights of equity of redemption. This means that the Custodian holds the property subject to the mortgage rights, if any of the appellants. 8. It has been conceded by Mr. Prem appearing for the respondents, that no action has been taken under the Evacuee Interest (Separation) Act 1951. Section 10 of this Act empowers the competent officer to take all necessary measures for the purpose of separating the interest of the evacuees from those of the claimants in any composite property which inter alia means any property which or in which an interest has been declared to be evacuee property or has vested in the Custodian under the Act and in which the interest of the evacuee is subject to mortgage in any form in favour of a person not being an evacuee. It is only after such separation of the interests of the evacuee and the claimants in the composite property that the evacuee interest gets vested in the custodian free from all encumbrances. It follows that so long as proper action under the Evacuee Interest (Separation) Act is not taken to separate the interest of the evacuees and the appellants who claim to be mortgagees, the Custodian cannot take any action against the appellants or their tenants who are said to be in possession of the property in suit. | 0[ds]4. The interest of Ibrahim and others, the evacuees of the property in suit which was under mortgage, consisted of the equity of redemption in the property. It is this interest of theirs which could be declared evacuee property and the order of the Assistant Custodian dated April 7, 1955, declaring the aforesaid property to be evacuee property, really amounts to an order declaring the right of Ibrahim and others in the equity of redemption evacuee property. The order cannot affect the mortgagee rights as Ibrahim and others had no interest in the mortgagee rights5. It follows that the impugned order does not affect the rights of the appellants if any as mortgagees. The non-issue of the notice to the appellants therefore is of no consequence as the order subsequently passed without the issue of the notice to them does not affect their interest6. Reference in this connection may again be made to Abdul Hakim Khans Case, 1962-1 SCR 531 : (AIR 1961 SC 1391 ). In that case a number of persons had shares in certain property. Some of them migrated to Pakistan. The notice under S. 7 (1) was issued to one of those persons who had not migrated to Pakistan. The Custodian declared the property of those who had migrated to be evacuee property and specified their share in the property. The other co-shares except the one to whom the notice was issued, challenged the validity of the order passed under S. 11 of the Evacuee Interest (Separation ) Act, 1951 (Act LIV of 1951) vesting the entire property in the Custodian. This Court held that the objectors could not challenge the validity of the order under S. 7 of the Act as it did not affect their rights in the property. Similarly it can be said that the appellants in this case cannot challenge the validity of the proceedings on the notice issued by the Assistant Custodian and the order of the Assistant Custodian declaring the property in suit to be evacuee property when that order does not affect the mortgagee rights of the appellants7. By virtue of the order dated April 7, 1955, the rights of the evacuees in the property in suit vest in the Custodian and those rights, as stated earlier, consist of the rights of equity of redemption. This means that the Custodian holds the property subject to the mortgage rights, if any of the appellants8. It has been conceded by Mr. Prem appearing for the respondents, that no action has been taken under the Evacuee Interest (Separation) Act 1951. Section 10 of this Act empowers the competent officer to take all necessary measures for the purpose of separating the interest of the evacuees from those of the claimants in any composite property which inter alia means any property which or in which an interest has been declared to be evacuee property or has vested in the Custodian under the Act and in which the interest of the evacuee is subject to mortgage in any form in favour of a person not being an evacuee. It is only after such separation of the interests of the evacuee and the claimants in the composite property that the evacuee interest gets vested in the custodian free from all encumbrances. It follows that so long as proper action under the Evacuee Interest (Separation) Act is not taken to separate the interest of the evacuees and the appellants who claim to be mortgagees, the Custodian cannot take any action against the appellants or their tenants who are said to be in possession of the property in suit. | 0 | 1,394 | 653 | ### Instruction:
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in 1931, that the mortgagees had been in possession of the property, that they did not get any notice of the proceedings taken by the Assistant Custodian and were informed of his order in 1959 by their tenants in the land in suit when the allottees of the land were taking steps to recover possession. The writ petition was dismissed by the High Court which held that the issue of notice to Hazari and Magha was sufficient compliance with the requirements of sub-section (1) of S. 7 of the Act as the custodian had not to make any preliminary enquiry about the persons who might be interested in the property of the alleged evacuee. It is against this order that Bhanwar Lal and Rati Ram have filed this appeal by special leave. 3. Section 7(1) of the Act reads:"Where the Custodian is of opinion that any property is evacuee property within the meaning of this Act, he may, after causing notice thereof to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property." The Custodian can form his opinion about any property having become evacuee property on the basis of information available to him. It has been so held in Abdul Hakim Khan v. Regional Settlement Commissioner, 1962-1 SCR 531 : (AIR 1961 SC 1391 ). He can issue notice to the persons interested also on the basis of information available to him. He is not expected to hold a general inquiry of the persons interested in the alleged evacuee property. In the present case it appears that the village records about the land in suit which is agricultural, recorded the names of Hazari and Magha as mortgages and that the Assistant Custodian could consider them to be the persons interested. He could have had no information whether these mortgagees who resided at some other place were alive or not. He complied with the requirements of sub-section (1) of S. 7 to give a notice to Hazari and Magha. The notice however was ineffective and not good as Hazari and Magha had died long before. The question then arises whether the further proceedings on the basis of this notice could affect the interests of the mortgagees. 4. The interest of Ibrahim and others, the evacuees of the property in suit which was under mortgage, consisted of the equity of redemption in the property. It is this interest of theirs which could be declared evacuee property and the order of the Assistant Custodian dated April 7, 1955, declaring the aforesaid property to be evacuee property, really amounts to an order declaring the right of Ibrahim and others in the equity of redemption evacuee property. The order cannot affect the mortgagee rights as Ibrahim and others had no interest in the mortgagee rights. 5. It follows that the impugned order does not affect the rights of the appellants if any as mortgagees. The non-issue of the notice to the appellants therefore is of no consequence as the order subsequently passed without the issue of the notice to them does not affect their interest. 6. Reference in this connection may again be made to Abdul Hakim Khans Case, 1962-1 SCR 531 : (AIR 1961 SC 1391 ). In that case a number of persons had shares in certain property. Some of them migrated to Pakistan. The notice under S. 7 (1) was issued to one of those persons who had not migrated to Pakistan. The Custodian declared the property of those who had migrated to be evacuee property and specified their share in the property. The other co-shares except the one to whom the notice was issued, challenged the validity of the order passed under S. 11 of the Evacuee Interest (Separation ) Act, 1951 (Act LIV of 1951) vesting the entire property in the Custodian. This Court held that the objectors could not challenge the validity of the order under S. 7 of the Act as it did not affect their rights in the property. Similarly it can be said that the appellants in this case cannot challenge the validity of the proceedings on the notice issued by the Assistant Custodian and the order of the Assistant Custodian declaring the property in suit to be evacuee property when that order does not affect the mortgagee rights of the appellants. 7. By virtue of the order dated April 7, 1955, the rights of the evacuees in the property in suit vest in the Custodian and those rights, as stated earlier, consist of the rights of equity of redemption. This means that the Custodian holds the property subject to the mortgage rights, if any of the appellants. 8. It has been conceded by Mr. Prem appearing for the respondents, that no action has been taken under the Evacuee Interest (Separation) Act 1951. Section 10 of this Act empowers the competent officer to take all necessary measures for the purpose of separating the interest of the evacuees from those of the claimants in any composite property which inter alia means any property which or in which an interest has been declared to be evacuee property or has vested in the Custodian under the Act and in which the interest of the evacuee is subject to mortgage in any form in favour of a person not being an evacuee. It is only after such separation of the interests of the evacuee and the claimants in the composite property that the evacuee interest gets vested in the custodian free from all encumbrances. It follows that so long as proper action under the Evacuee Interest (Separation) Act is not taken to separate the interest of the evacuees and the appellants who claim to be mortgagees, the Custodian cannot take any action against the appellants or their tenants who are said to be in possession of the property in suit.
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0
### Explanation:
4. The interest of Ibrahim and others, the evacuees of the property in suit which was under mortgage, consisted of the equity of redemption in the property. It is this interest of theirs which could be declared evacuee property and the order of the Assistant Custodian dated April 7, 1955, declaring the aforesaid property to be evacuee property, really amounts to an order declaring the right of Ibrahim and others in the equity of redemption evacuee property. The order cannot affect the mortgagee rights as Ibrahim and others had no interest in the mortgagee rights5. It follows that the impugned order does not affect the rights of the appellants if any as mortgagees. The non-issue of the notice to the appellants therefore is of no consequence as the order subsequently passed without the issue of the notice to them does not affect their interest6. Reference in this connection may again be made to Abdul Hakim Khans Case, 1962-1 SCR 531 : (AIR 1961 SC 1391 ). In that case a number of persons had shares in certain property. Some of them migrated to Pakistan. The notice under S. 7 (1) was issued to one of those persons who had not migrated to Pakistan. The Custodian declared the property of those who had migrated to be evacuee property and specified their share in the property. The other co-shares except the one to whom the notice was issued, challenged the validity of the order passed under S. 11 of the Evacuee Interest (Separation ) Act, 1951 (Act LIV of 1951) vesting the entire property in the Custodian. This Court held that the objectors could not challenge the validity of the order under S. 7 of the Act as it did not affect their rights in the property. Similarly it can be said that the appellants in this case cannot challenge the validity of the proceedings on the notice issued by the Assistant Custodian and the order of the Assistant Custodian declaring the property in suit to be evacuee property when that order does not affect the mortgagee rights of the appellants7. By virtue of the order dated April 7, 1955, the rights of the evacuees in the property in suit vest in the Custodian and those rights, as stated earlier, consist of the rights of equity of redemption. This means that the Custodian holds the property subject to the mortgage rights, if any of the appellants8. It has been conceded by Mr. Prem appearing for the respondents, that no action has been taken under the Evacuee Interest (Separation) Act 1951. Section 10 of this Act empowers the competent officer to take all necessary measures for the purpose of separating the interest of the evacuees from those of the claimants in any composite property which inter alia means any property which or in which an interest has been declared to be evacuee property or has vested in the Custodian under the Act and in which the interest of the evacuee is subject to mortgage in any form in favour of a person not being an evacuee. It is only after such separation of the interests of the evacuee and the claimants in the composite property that the evacuee interest gets vested in the custodian free from all encumbrances. It follows that so long as proper action under the Evacuee Interest (Separation) Act is not taken to separate the interest of the evacuees and the appellants who claim to be mortgagees, the Custodian cannot take any action against the appellants or their tenants who are said to be in possession of the property in suit.
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National Textile Corporation Ltd Vs. Durga Trading Co. & Ors. | by or against the National Textile Corporation.” Thus, it is clear that all other rights and interests in or arising out of such property as were existing immediately before the appointed day in the ownership, possession, power or control of the textile company in relation to the said undertaking vested with the Central Government and by virtue of sub-section (2) of Section (3) stood transferred to, and vested in, the National Textile Corporation. Liability if any of the owner of a textile undertaking i.e. SSML of any period to the appointed day is liability of such owner (SSML) and can be enforceable against him and not against the Central Government or the National Textile Corporation in view of Section 5(1) of 1995 Act, which reads as follows: “5 (1) Every liability, other than the liability specified in sub-section (2), of the owner of a textile undertaking, in relation to the textile undertakings in respect of any period prior to the appointed day, shall be the liability of such owner and shall be enforceable against him and not against the Central Government or the National Textile Corporation.” 15. Therefore respondent No. 1 cannot derive any advantage against the Central Government or the National Textile Corporation on the ground of pendency of a suit against the owner CSSML). 16. In M/s. Doypack Systems Pvt. Ltd. v. Union of India & Ors., (1988) 2 SCC 299 , while dealing with a case involving National Textile Corporation-appellant herein, the Court noticed the meaning of the expressions “arising out of, pertaining to and in relation to” and observed: “49. The words “arising out of” have been used in the sense that it comprises purchase of shares and lands from income arising out of the Kanpur undertaking. We are of the opinion that the words “pertaining to” and ‘in relation to” have the same wide meaning and have been used interchangeably for among other reasons, which may include avoidance of repetition of the same phrase in the same clause or sentence, a method followed in good drafting. The word “pertain” is synpnymous with the word “relate”, see Corpus Juris Secundum, Volume 17, page 693.50. The expression “in relation to” (so also “pertaining to”), is a very broad expression which presupposes another subject matter. These are words of comprehensiveness which might have both a direct significance as well as an indirect significance depending on the context, see State Wakf Board v. Abdul Azeez 29, following and approving Nita Charan Bagchi v. Suresh Chandra Paul 30, Shyam Lai v. M. Shyamlal 31 and 76 Corpus Juris Secundum 621. Assuming that the investments in shares and in lands do not form part of the undertakings but are different subject matters, even then these would be brought within the purview of the vesting by reason of the above expressions. In this connection reference may be made to 76 Corpus Juris Secundum at pages 620 and 621 where it is stated that the term “relate” is also defined as meaning to bring into association or connection with, It has been clearly mentioned that “relating to” has been held to be equivalent to or synonymous with as to “concerning with” and “pertaining to”. The expression “pertaining to" is an expression of expansion and not of contraction.” 17. The First Schedule of the 1995 Act provides the amount which the Central Government has to pay to the owner of every textile undertaking for the transfer and vesting of such undertaking to it. This provision cannot be the starting point of investigation as to which amount relates to which property or as a guide to construction (See paragraph 54 of M/s. Doypack Systems Pvt. Ltd. v. Union of India & Ors., (1988) 2 SCC 299. In the said case of M/s. Doypack Systems Pvt. Ltd. the Court further held: “57. The expression “and all other rights and interests in or arising out of such property, as were immediately before the appointed day, in the ownership, possession, power or control of the company in relation to the said undertakings”, appearing in sub-section (1) of Section 4 of the Act indicates that the shares which have been purchased from out of the funds of the textile undertakings and which have been held for the benefit of the said textile undertakings, would come within the scope of Section 4 of the Act and thus would also vest in Central Government under Section 3. The origin of these shares and their connection with the textile undertakings have been fully corroborated. The textile business is the only business of Swadeshi Cotton Mills. There is interconnection and interrelation between all the six undertakings. Investments in Swadeshi Polytex Limited from the funds of Kanpur undertaking have always been made. Investments in Swadeshi Mining and Manufacturing Company Ltd. were always made from the funds of the Kanpur undertaking. Assets/ investments held and used for the benefit of the textile business of SCM, were carried on in its textile undertakings.” Therefore, it is clear that the property in question stood vested in the Central Government and, in turn, stood transferred and vested with National Textile Corporation under sub-section (2) of Section 3 of 1995 Act. Even if it is admitted that respondent No. 1 has acted on the agreement to sell and has paid the entire consideration, it cannot be a ground to hold that respondent No. 1 is authorized occupant within the meaning of Section 2(g) of the 1971 Act18. We are of the view that the Division Bench of the High Court failed to analyze the provisions correctly and wrongly presumed that the property in question has been sold to the Textile Undertaking prior to the commencement of 1983 Act. The Court wrongly relied on Section 53A of the Transfer of Property Act to hold that respondent No. 1 has valid defence available under the said provision and hence erred in holding that respondent No. 1 is an authorized occupant within the meaning of Section 2(g) of the 1971 Act. 19. | 1[ds]Therefore, it is clear that the property in question stood vested in the Central Government and, in turn, stood transferred and vested with National Textile Corporation under(2) of Section 3 of 1995 Act. Even if it is admitted that respondent No. 1 has acted on the agreement to sell and has paid the entire consideration, it cannot be a ground to hold that respondent No. 1 is authorized occupant within the meaning of Section 2(g) of the 1971 Act18. We are of the view that the Division Bench of the High Court failed to analyze the provisions correctly and wrongly presumed that the property in question has been sold to the Textile Undertaking prior to the commencement of 1983 Act. The Court wrongly relied on Section 53A of the Transfer of Property Act to hold that respondent No. 1 has valid defence available under the said provision and hence erred in holding that respondent No. 1 is an authorized occupant within the meaning of Section 2(g) of the 1971 Act. | 1 | 5,606 | 196 | ### Instruction:
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by or against the National Textile Corporation.” Thus, it is clear that all other rights and interests in or arising out of such property as were existing immediately before the appointed day in the ownership, possession, power or control of the textile company in relation to the said undertaking vested with the Central Government and by virtue of sub-section (2) of Section (3) stood transferred to, and vested in, the National Textile Corporation. Liability if any of the owner of a textile undertaking i.e. SSML of any period to the appointed day is liability of such owner (SSML) and can be enforceable against him and not against the Central Government or the National Textile Corporation in view of Section 5(1) of 1995 Act, which reads as follows: “5 (1) Every liability, other than the liability specified in sub-section (2), of the owner of a textile undertaking, in relation to the textile undertakings in respect of any period prior to the appointed day, shall be the liability of such owner and shall be enforceable against him and not against the Central Government or the National Textile Corporation.” 15. Therefore respondent No. 1 cannot derive any advantage against the Central Government or the National Textile Corporation on the ground of pendency of a suit against the owner CSSML). 16. In M/s. Doypack Systems Pvt. Ltd. v. Union of India & Ors., (1988) 2 SCC 299 , while dealing with a case involving National Textile Corporation-appellant herein, the Court noticed the meaning of the expressions “arising out of, pertaining to and in relation to” and observed: “49. The words “arising out of” have been used in the sense that it comprises purchase of shares and lands from income arising out of the Kanpur undertaking. We are of the opinion that the words “pertaining to” and ‘in relation to” have the same wide meaning and have been used interchangeably for among other reasons, which may include avoidance of repetition of the same phrase in the same clause or sentence, a method followed in good drafting. The word “pertain” is synpnymous with the word “relate”, see Corpus Juris Secundum, Volume 17, page 693.50. The expression “in relation to” (so also “pertaining to”), is a very broad expression which presupposes another subject matter. These are words of comprehensiveness which might have both a direct significance as well as an indirect significance depending on the context, see State Wakf Board v. Abdul Azeez 29, following and approving Nita Charan Bagchi v. Suresh Chandra Paul 30, Shyam Lai v. M. Shyamlal 31 and 76 Corpus Juris Secundum 621. Assuming that the investments in shares and in lands do not form part of the undertakings but are different subject matters, even then these would be brought within the purview of the vesting by reason of the above expressions. In this connection reference may be made to 76 Corpus Juris Secundum at pages 620 and 621 where it is stated that the term “relate” is also defined as meaning to bring into association or connection with, It has been clearly mentioned that “relating to” has been held to be equivalent to or synonymous with as to “concerning with” and “pertaining to”. The expression “pertaining to" is an expression of expansion and not of contraction.” 17. The First Schedule of the 1995 Act provides the amount which the Central Government has to pay to the owner of every textile undertaking for the transfer and vesting of such undertaking to it. This provision cannot be the starting point of investigation as to which amount relates to which property or as a guide to construction (See paragraph 54 of M/s. Doypack Systems Pvt. Ltd. v. Union of India & Ors., (1988) 2 SCC 299. In the said case of M/s. Doypack Systems Pvt. Ltd. the Court further held: “57. The expression “and all other rights and interests in or arising out of such property, as were immediately before the appointed day, in the ownership, possession, power or control of the company in relation to the said undertakings”, appearing in sub-section (1) of Section 4 of the Act indicates that the shares which have been purchased from out of the funds of the textile undertakings and which have been held for the benefit of the said textile undertakings, would come within the scope of Section 4 of the Act and thus would also vest in Central Government under Section 3. The origin of these shares and their connection with the textile undertakings have been fully corroborated. The textile business is the only business of Swadeshi Cotton Mills. There is interconnection and interrelation between all the six undertakings. Investments in Swadeshi Polytex Limited from the funds of Kanpur undertaking have always been made. Investments in Swadeshi Mining and Manufacturing Company Ltd. were always made from the funds of the Kanpur undertaking. Assets/ investments held and used for the benefit of the textile business of SCM, were carried on in its textile undertakings.” Therefore, it is clear that the property in question stood vested in the Central Government and, in turn, stood transferred and vested with National Textile Corporation under sub-section (2) of Section 3 of 1995 Act. Even if it is admitted that respondent No. 1 has acted on the agreement to sell and has paid the entire consideration, it cannot be a ground to hold that respondent No. 1 is authorized occupant within the meaning of Section 2(g) of the 1971 Act18. We are of the view that the Division Bench of the High Court failed to analyze the provisions correctly and wrongly presumed that the property in question has been sold to the Textile Undertaking prior to the commencement of 1983 Act. The Court wrongly relied on Section 53A of the Transfer of Property Act to hold that respondent No. 1 has valid defence available under the said provision and hence erred in holding that respondent No. 1 is an authorized occupant within the meaning of Section 2(g) of the 1971 Act. 19.
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Therefore, it is clear that the property in question stood vested in the Central Government and, in turn, stood transferred and vested with National Textile Corporation under(2) of Section 3 of 1995 Act. Even if it is admitted that respondent No. 1 has acted on the agreement to sell and has paid the entire consideration, it cannot be a ground to hold that respondent No. 1 is authorized occupant within the meaning of Section 2(g) of the 1971 Act18. We are of the view that the Division Bench of the High Court failed to analyze the provisions correctly and wrongly presumed that the property in question has been sold to the Textile Undertaking prior to the commencement of 1983 Act. The Court wrongly relied on Section 53A of the Transfer of Property Act to hold that respondent No. 1 has valid defence available under the said provision and hence erred in holding that respondent No. 1 is an authorized occupant within the meaning of Section 2(g) of the 1971 Act.
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Smt. Shanti Bai Vs. Smt. Miggo Devi and Others | asked her to adopt the third respondent. That, we are afraid, is rather difficult to believe. It is also strange that if in the middle of January when the appellant came to Nagpur with her sisters son, Kedar Nath stated that he would to take the appellant sisters son in adoption, but that he would adopt the third respondent, why should he have waited till one day prior to his death to authorise the appellant to take the third respondent in adoption. We have already pointed out above that it was nobodys case that Kedar Nath was so seriously ill on February 16, that he apprehended that he might die on the next day. Then why should he have thought of giving authority to the appellant to adopt the third respondent on the night of February 16, he could have himself made the adoption on the next day. It is also difficult to understand why Kedar Nath who was lying ill even in the month of January should not have mentioned anything in his will about the adoption of a son to him, if he was thinking of taking a son in adoption. The entire story of Kedar Nath giving authority to the appellant to adopt the third respondent on the night of February 16, 1944 appears to be an afterthought and we cannot accept the same.7. We may point out that even the High Court felt that the evidence of Parmanand Chobey, Nawal Kishore and the second respondent was not sufficient to establish that authority had been given to the appellant by Kedar Nath to adopt third respondent. The High Court observed that "had the matter rested there; it would undoubtedly have been difficult to hold that the appellant had been authorised by her husband to make the adoption." But the High Court took the view that the subsequent conduct of the appellant in going through the ceremonies of adoption, executing deed of adoption reciting that she had been authorised by her husband to make the adoption and making an appointment of herself as guardian of the third respondent led to the irresistible inference that she had been authorised by Kedar Nath to adopt the third respondent. We find it difficult to agree with the reasoning of the High Court. It is not doubt true, as concurrently found by the learned trial Judge and the High Court, that the appellant went through the ceremonies of adoption and executed a deed of adoption containing a recital that Kedar Nath had expressed his desire that the appellant should adopt the third respondent and also made an application for appointment of herself as the guardian of the third respondent. But we do not think that these circumstances are sufficient to establish the giving of authority by Kedar Nath to the appellant to make the adoption of the third respondent. There is nothing to show that the appellant was any time aware that she could not make a valid adoption without the authority of her deceased husband Kedar Nath. It is indeed difficult to believe that an uneducated rustic woman like the appellant would be conversant with the requirement of the Banaras School of Hindu Law that an adoption cannot be made by a Hindu widow without the authority of her deceased husband. It is quite possible - we would even say, quite certain - that the appellant went through the ceremonies of adoption under the impression that what she was accomplishing was a valid act of adoption and in these circumstances, to conclude from the factum of adoption that authority must have been conferred upon her by Kedar Nath to adopt a son would be long jump in the argument which we cannot take. The deed of adoption undoubtedly contained a recital that Kedar Nath at the time of his illness expressed his desire that the appellant should adopt the third respondent, but significantly enough the deed of adoption does not state to when this desire was expressed. Nor does it state that the second respondent and his wife agreed to the proposal made by Kedar Nath and thereafter Kedar Nath told that appellant to adopt the third respondent. On the contrary what the recital says is that in obedience to the last desire of Kedar Nath, the appellant requested the second respondent to give the third respondent in adoption and the second respondent agreed to this request. Moreover even if this recital was read over to the appellant before she signed the deed of adoption, we cannot attach any undue importance to it, because the deed of adoption was executed on March 1, 1944, on the 13th day after the death of Kedar Nath, and we find it difficult to believe that the appellant in the state of mind in which she must have been at that time in view of the death of her deceased husband, could possibly have understood all that was written in the deed of adoption or appreciated the implications of the recital set out in the deed of adoption. It cannot be gainsaid that the appellant made an application for appointment of herself as guardian of the third respondent, but that again may have been done by the appellant because she might have bona fide believed that the third respondent was her validly adopted son and from this, no inference can be drawn that she must have been authorised by Kedar Nath to adopt a son, unless it can be shown that all material times she was aware that she could not make a valid adoption without the authority of her deceased husband Kedar Nath. We are therefore of the view that the subsequent conduct of the appellant has no bearing at all on the decision of the question whether authority was given by Kedar Nath to the appellant to make an adoption. The High Court was in the circumstances clearly wrong in taking the view that the adoption of third respondent was valid and binding. | 1[ds]It is obvious that he was a tutored witness and having forgotten to mention this alleged statement by Keadar Nath in hishe tried to introduce it in hisWe cannot accept this statement at its face value but even if it were true, it does not carry the case of the respondents any further, because it merely refers to a desire expressed by Kedar Nath to adopt the third respondent in preference to an outsider, but does not go so far as to say that Kedar Nath gave authority to the appellant to adopt the third respondent. Parmanand Chobey did not even state in his evidence that the appellant was present at the time when this talk took place between him and Kedar Nath. It is also significant to note that Parmanand Chobey did not state in his evidence, nor even in histhat he was present in the house of Kedar Nath in the evening of February 16, 1944 or that at that time, Kedar Nath authorised the appellant to adopt the third respondent. The evidence of Parmanand Chobey is therefore clearly of no assistance to the respondents.5. When we turn to the evidence of Nawal Kishore, we find that this evidence also does not go far enough to establish the conferment of authority by Kedar Nath on the appellant to adopt the third respondent. The only talk in regard to adoption, according to this witness, took place on the night between February 16 and 17, 1944 and during the period of 5 or 6 months prior to his death, Kedar Nath had not even mentioned a word about his desire to adopt a son. Even on the night between February 16 and 17, when Kedar Nath talked about the adoption, what he talked (sic) this witnesses was to ask Kashi Prasad and the second respondent to agree to the adoption of the third respondent and thereupon this witness talked to Kashi Prasad and the second respondent and Kashi Prasad immediately agreed while the second respondent went inside the house to consult his wife and then communicated their approval. This evidence, even if accepted as wholly correct, merely establishes that Kedar Nath proposed to adopt the third respondent and Kashi Prasad as well as the second respondent and his wife agreed with the proposal. It does not go further and say that Kedar Nath thereafter called the appellant and gave her authority to adopt the third respondent. We are not at all satisfied that even this conversation between Kedar Nath and Nawal Kishore took place on the night between February 16 and 17. It is indeed rather strange that the conversation in regard to the adoption of third respondent should have taken place just on the previous night before the death of Kedar Nath. It was not the case of either party that Kedar Nath was in such a serious condition on January 16 that it was apprehended that he might die on the next day, so that he might entertain the idea of adopting a son on the night of February 16. But even if we assume for the purpose of agreement that such a conversation did take place between Kedar Nath and Nawal Kishore and the second respondent and his wife agreed to the proposal of adoption of the third respondent, it is quite possible that Kedar Nath might have put forward this proposal with a view to himself making the adoption, but before he could make the adoption, he died on February 17, 1944. We do not, therefore, think that the evidence of Nawal Kishore goes any way near establishing the case of the respondents.6. That takes us to the evidence of the second respondent. Now the major drawback from which the evidence suffers is that the second respondent is clearly an interested witness. If the adoption of the third respondent is declared by the court to be valid, the third respondent, who is his only natural son, would get additionally 1/6th share in the joint family properties. We would, therefore, have no scrutinise the evidence of the second respondent with great care and caution. Now it is no doubt true that, according to the evidence of the second respondent, the talk in regard to the adoption took place one day prior to the death of Kedar Nath and on that day after obtaining the approval of the second respondent and his wife, Kedar Nath told the appellant to adopt the third respondent. But, we find it difficult to accept this evidence. Nawal Kishore, who, according to the evidence of the second respondent, was present at the time when Kedar Nath asked the appellant to adopt the third respondent, did to support the second respondent in his evidence that any such authority was given by Kedar Nath to the appellant. Moreover, it is difficult to understand how this talk about taking the third respondent in adoption took place just to the previous night before the death of Kedar Nath. It would seem as if Keadar Nath had premonition of his death and therefore on the previous night, he called the appellant and asked her to adopt the third respondent. That, we are afraid, is rather difficult to believe. It is also strange that if in the middle of January when the appellant came to Nagpur with her sisters son, Kedar Nath stated that he would to take the appellant sisters son in adoption, but that he would adopt the third respondent, why should he have waited till one day prior to his death to authorise the appellant to take the third respondent in adoption. We have already pointed out above that it was nobodys case that Kedar Nath was so seriously ill on February 16, that he apprehended that he might die on the next day. Then why should he have thought of giving authority to the appellant to adopt the third respondent on the night of February 16, he could have himself made the adoption on the next day. It is also difficult to understand why Kedar Nath who was lying ill even in the month of January should not have mentioned anything in his will about the adoption of a son to him, if he was thinking of taking a son in adoption. The entire story of Kedar Nath giving authority to the appellant to adopt the third respondent on the night of February 16, 1944 appears to be an afterthought and we cannot accept theis not doubt true, as concurrently found by the learned trial Judge and the High Court, that the appellant went through the ceremonies of adoption and executed a deed of adoption containing a recital that Kedar Nath had expressed his desire that the appellant should adopt the third respondent and also made an application for appointment of herself as the guardian of the third respondent. But we do not think that these circumstances are sufficient to establish the giving of authority by Kedar Nath to the appellant to make the adoption of the third respondent. There is nothing to show that the appellant was any time aware that she could not make a valid adoption without the authority of her deceased husband Kedar Nath. It is indeed difficult to believe that an uneducated rustic woman like the appellant would be conversant with the requirement of the Banaras School of Hindu Law that an adoption cannot be made by a Hindu widow without the authority of her deceased husband. It is quite possiblewe would even say, quite certainthat the appellant went through the ceremonies of adoption under the impression that what she was accomplishing was a valid act of adoption and in these circumstances, to conclude from the factum of adoption that authority must have been conferred upon her by Kedar Nath to adopt a son would be long jump in the argument which we cannot take. The deed of adoption undoubtedly contained a recital that Kedar Nath at the time of his illness expressed his desire that the appellant should adopt the third respondent, but significantly enough the deed of adoption does not state to when this desire was expressed. Nor does it state that the second respondent and his wife agreed to the proposal made by Kedar Nath and thereafter Kedar Nath told that appellant to adopt the third respondent. On the contrary what the recital says is that in obedience to the last desire of Kedar Nath, the appellant requested the second respondent to give the third respondent in adoption and the second respondent agreed to this request. | 1 | 3,781 | 1,527 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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asked her to adopt the third respondent. That, we are afraid, is rather difficult to believe. It is also strange that if in the middle of January when the appellant came to Nagpur with her sisters son, Kedar Nath stated that he would to take the appellant sisters son in adoption, but that he would adopt the third respondent, why should he have waited till one day prior to his death to authorise the appellant to take the third respondent in adoption. We have already pointed out above that it was nobodys case that Kedar Nath was so seriously ill on February 16, that he apprehended that he might die on the next day. Then why should he have thought of giving authority to the appellant to adopt the third respondent on the night of February 16, he could have himself made the adoption on the next day. It is also difficult to understand why Kedar Nath who was lying ill even in the month of January should not have mentioned anything in his will about the adoption of a son to him, if he was thinking of taking a son in adoption. The entire story of Kedar Nath giving authority to the appellant to adopt the third respondent on the night of February 16, 1944 appears to be an afterthought and we cannot accept the same.7. We may point out that even the High Court felt that the evidence of Parmanand Chobey, Nawal Kishore and the second respondent was not sufficient to establish that authority had been given to the appellant by Kedar Nath to adopt third respondent. The High Court observed that "had the matter rested there; it would undoubtedly have been difficult to hold that the appellant had been authorised by her husband to make the adoption." But the High Court took the view that the subsequent conduct of the appellant in going through the ceremonies of adoption, executing deed of adoption reciting that she had been authorised by her husband to make the adoption and making an appointment of herself as guardian of the third respondent led to the irresistible inference that she had been authorised by Kedar Nath to adopt the third respondent. We find it difficult to agree with the reasoning of the High Court. It is not doubt true, as concurrently found by the learned trial Judge and the High Court, that the appellant went through the ceremonies of adoption and executed a deed of adoption containing a recital that Kedar Nath had expressed his desire that the appellant should adopt the third respondent and also made an application for appointment of herself as the guardian of the third respondent. But we do not think that these circumstances are sufficient to establish the giving of authority by Kedar Nath to the appellant to make the adoption of the third respondent. There is nothing to show that the appellant was any time aware that she could not make a valid adoption without the authority of her deceased husband Kedar Nath. It is indeed difficult to believe that an uneducated rustic woman like the appellant would be conversant with the requirement of the Banaras School of Hindu Law that an adoption cannot be made by a Hindu widow without the authority of her deceased husband. It is quite possible - we would even say, quite certain - that the appellant went through the ceremonies of adoption under the impression that what she was accomplishing was a valid act of adoption and in these circumstances, to conclude from the factum of adoption that authority must have been conferred upon her by Kedar Nath to adopt a son would be long jump in the argument which we cannot take. The deed of adoption undoubtedly contained a recital that Kedar Nath at the time of his illness expressed his desire that the appellant should adopt the third respondent, but significantly enough the deed of adoption does not state to when this desire was expressed. Nor does it state that the second respondent and his wife agreed to the proposal made by Kedar Nath and thereafter Kedar Nath told that appellant to adopt the third respondent. On the contrary what the recital says is that in obedience to the last desire of Kedar Nath, the appellant requested the second respondent to give the third respondent in adoption and the second respondent agreed to this request. Moreover even if this recital was read over to the appellant before she signed the deed of adoption, we cannot attach any undue importance to it, because the deed of adoption was executed on March 1, 1944, on the 13th day after the death of Kedar Nath, and we find it difficult to believe that the appellant in the state of mind in which she must have been at that time in view of the death of her deceased husband, could possibly have understood all that was written in the deed of adoption or appreciated the implications of the recital set out in the deed of adoption. It cannot be gainsaid that the appellant made an application for appointment of herself as guardian of the third respondent, but that again may have been done by the appellant because she might have bona fide believed that the third respondent was her validly adopted son and from this, no inference can be drawn that she must have been authorised by Kedar Nath to adopt a son, unless it can be shown that all material times she was aware that she could not make a valid adoption without the authority of her deceased husband Kedar Nath. We are therefore of the view that the subsequent conduct of the appellant has no bearing at all on the decision of the question whether authority was given by Kedar Nath to the appellant to make an adoption. The High Court was in the circumstances clearly wrong in taking the view that the adoption of third respondent was valid and binding.
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16 and 17. It is indeed rather strange that the conversation in regard to the adoption of third respondent should have taken place just on the previous night before the death of Kedar Nath. It was not the case of either party that Kedar Nath was in such a serious condition on January 16 that it was apprehended that he might die on the next day, so that he might entertain the idea of adopting a son on the night of February 16. But even if we assume for the purpose of agreement that such a conversation did take place between Kedar Nath and Nawal Kishore and the second respondent and his wife agreed to the proposal of adoption of the third respondent, it is quite possible that Kedar Nath might have put forward this proposal with a view to himself making the adoption, but before he could make the adoption, he died on February 17, 1944. We do not, therefore, think that the evidence of Nawal Kishore goes any way near establishing the case of the respondents.6. That takes us to the evidence of the second respondent. Now the major drawback from which the evidence suffers is that the second respondent is clearly an interested witness. If the adoption of the third respondent is declared by the court to be valid, the third respondent, who is his only natural son, would get additionally 1/6th share in the joint family properties. We would, therefore, have no scrutinise the evidence of the second respondent with great care and caution. Now it is no doubt true that, according to the evidence of the second respondent, the talk in regard to the adoption took place one day prior to the death of Kedar Nath and on that day after obtaining the approval of the second respondent and his wife, Kedar Nath told the appellant to adopt the third respondent. But, we find it difficult to accept this evidence. Nawal Kishore, who, according to the evidence of the second respondent, was present at the time when Kedar Nath asked the appellant to adopt the third respondent, did to support the second respondent in his evidence that any such authority was given by Kedar Nath to the appellant. Moreover, it is difficult to understand how this talk about taking the third respondent in adoption took place just to the previous night before the death of Kedar Nath. It would seem as if Keadar Nath had premonition of his death and therefore on the previous night, he called the appellant and asked her to adopt the third respondent. That, we are afraid, is rather difficult to believe. It is also strange that if in the middle of January when the appellant came to Nagpur with her sisters son, Kedar Nath stated that he would to take the appellant sisters son in adoption, but that he would adopt the third respondent, why should he have waited till one day prior to his death to authorise the appellant to take the third respondent in adoption. We have already pointed out above that it was nobodys case that Kedar Nath was so seriously ill on February 16, that he apprehended that he might die on the next day. Then why should he have thought of giving authority to the appellant to adopt the third respondent on the night of February 16, he could have himself made the adoption on the next day. It is also difficult to understand why Kedar Nath who was lying ill even in the month of January should not have mentioned anything in his will about the adoption of a son to him, if he was thinking of taking a son in adoption. The entire story of Kedar Nath giving authority to the appellant to adopt the third respondent on the night of February 16, 1944 appears to be an afterthought and we cannot accept theis not doubt true, as concurrently found by the learned trial Judge and the High Court, that the appellant went through the ceremonies of adoption and executed a deed of adoption containing a recital that Kedar Nath had expressed his desire that the appellant should adopt the third respondent and also made an application for appointment of herself as the guardian of the third respondent. But we do not think that these circumstances are sufficient to establish the giving of authority by Kedar Nath to the appellant to make the adoption of the third respondent. There is nothing to show that the appellant was any time aware that she could not make a valid adoption without the authority of her deceased husband Kedar Nath. It is indeed difficult to believe that an uneducated rustic woman like the appellant would be conversant with the requirement of the Banaras School of Hindu Law that an adoption cannot be made by a Hindu widow without the authority of her deceased husband. It is quite possiblewe would even say, quite certainthat the appellant went through the ceremonies of adoption under the impression that what she was accomplishing was a valid act of adoption and in these circumstances, to conclude from the factum of adoption that authority must have been conferred upon her by Kedar Nath to adopt a son would be long jump in the argument which we cannot take. The deed of adoption undoubtedly contained a recital that Kedar Nath at the time of his illness expressed his desire that the appellant should adopt the third respondent, but significantly enough the deed of adoption does not state to when this desire was expressed. Nor does it state that the second respondent and his wife agreed to the proposal made by Kedar Nath and thereafter Kedar Nath told that appellant to adopt the third respondent. On the contrary what the recital says is that in obedience to the last desire of Kedar Nath, the appellant requested the second respondent to give the third respondent in adoption and the second respondent agreed to this request.
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Kandla Export Corporation & Another Vs. M/s. OCI Corporation & Another | the forum which will hear and decide such an appeal. 24. In fact, in Sumitomo Corporation v. CDC Financial Services (Mauritius) Ltd. and Ors., (2008) 4 SCC 91 , this Court adverted to Section 50 of the Arbitration Act and to Sections 10(1)(a) and 10F of the Companies Act, 1956, to hold that once an appeal is provided for in Section 50, the Court authorized by law to hear such appeals would then be found in Sections 10(1) (a) and 10F of the Companies Act. The present case is a parallel instance of Section 50 of the Arbitration Act providing for an appeal, and Section 13(1) of the Commercial Courts Act providing the forum for such appeal. Only, in the present case, as no appeal lies under Section 50 of the Arbitration Act, no forum can be provided for. 25. A recent judgment of this Court in Arun Dev Upadhyaya v. Integrated Sales Service Ltd., 2017(1) R.C.R.(Civil) 633 : 2017(1) Recent Apex Judgments (R.A.J.) 172 : (2016) 9 SCC 524 at 537 was adverted to by counsel for both sides. On facts, in this case, the Single Judge had refused to enforce a foreign award in favour of the appellants. The Respondents, in that case, claimed that an appeal from the Single Judge was not maintainable in view of the abolition of the letters patent appeal by a Maharashtra Act of 1986. This Court, following Fuerst Day Lawson (supra), repelled the aforesaid contention in the following terms: "25. The aforesaid provision clearly lays down that a forum is created i.e. Commercial Appellate Division. Section 50(1)(b) of the 1996 Act provides for an appeal. Section 50(1)(b) has not been amended by the Act that has come into force on 23-10-2015. Thus, an appeal under Section 50(1)(b) of the 1996 Act before the Division Bench is maintainable. 26. Thus analysed, we find that the impugned judgment [Integrated Sales Services Ltd. v. DMC Management Consultants Ltd., 2016 SCC OnLine Bom 4445] of the learned Single Judge under Section 50(1)(b) of the 1996 Act is passed in the Original Side of the High Court. Be that as it may, under Section 13 of the Act, the Single Judge has taken the decision. Section 13 bars an appeal under the Letters Patent unless an appeal is provided under the 1996 Act. Such an appeal is provided under Section 5 of the Act. The letters patent appeal could not have been invoked if Section 50 of the 1996 Act would not have provided for an appeal. But it does provide for an appeal. A conspectus reading of Sections 5 and 13 of the Act and Section 50 of the 1996 Act which has remained unamended leads to the irresistible conclusion that a letters patent appeal is maintainable before the Division Bench. It has to be treated as an appeal under Section 50(1)(b) of the 1996 Act and has to be adjudicated within the said parameters." 26. What is important to note is that it is Section 50 that provides for an appeal, and not the letters patent, given the subject matter of appeal. Also, the appeal has to be adjudicated within the parameters of Section 50 alone. Concomitantly, where Section 50 excludes an appeal, no such appeal will lie. 27. In this view of the case, it is unnecessary to advert to Shri Giris arguments based on Section 21 of the Commercial Courts Act. Section 21 would only apply if Section 13(1) were to apply in the first place, which, as has been found, cannot be held to apply for the reasons given hereinabove. Equally, it is unnecessary to advert to the arguments of the learned counsel for the Appellants based on Section 11 of the Commercial Courts Act. 28. The matter can be looked at from a slightly different angle. Given the objects of both the statutes, it is clear that arbitration itself is meant to be a speedy resolution of disputes between parties. Equally, enforcement of foreign awards should take place as soon as possible if India is to remain as an equal partner, commercially speaking, in the international community. In point of fact, the raison dêtre for the enactment of the Commercial Courts Act is that commercial disputes involving high amounts of money should be speedily decided. Given the objects of both the enactments, if we were to provide an additional appeal, when Section 50 does away with an appeal so as to speedily enforce foreign awards, we would be turning the Arbitration Act and the Commercial Courts Act on their heads. Admittedly, if the amount contained in a foreign award to be enforced in India were less than Rs. one crore, and a Single Judge of a High Court were to enforce such award, no appeal would lie, in keeping with the object of speedy enforcement of foreign awards. However, if, in the same fact circumstance, a foreign award were to be for Rs. one crore or more, if the Appellants are correct, enforcement of such award would be further delayed by providing an appeal under Section 13(1) of the Commercial Courts Act. Any such interpretation would lead to absurdity, and would be directly contrary to the object sought to be achieved by the Commercial Courts Act, viz., speedy resolution of disputes of a commercial nature involving a sum of Rs. 1 crore and over. For this reason also, we feel that Section 13(1) of the Commercial Courts Act must be construed in accordance with the object sought to be achieved by the Act. Any construction of Section 13 of the Commercial Courts Act, which would lead to further delay, instead of an expeditious enforcement of a foreign award must, therefore, be eschewed. Even on applying the doctrine of harmonious construction of both statutes, it is clear that they are best harmonized by giving effect to the special statute i.e. the Arbitration Act, vis-a-vis the more general statute, namely the Commercial Courts Act, being left to operate in spheres other than arbitration. | 0[ds]Given the judgment of this Court in Fuerst Day Lawson (supra), which Parliament is presumed to know when it enacted the Arbitration Amendment Act, 2015, and given the fact that no change was made in Section 50 of the Arbitration Act when the Commercial Courts Act was brought into force, it is clear that Section 50 is a provision contained in acode on matters pertaining to arbitration, and which is exhaustive in nature. It carries the negative import mentioned in paragraph 89 of Fuerst Day Lawson (supra) that appeals which are not mentioned therein, are not permissible. This being the case, it is clear that Section 13(1) of the Commercial Courts Act, being a general provisionarbitration relating to appeals arising out of commercial disputes, would obviously not apply to cases covered by Section 50 of the Arbitrationmay be the ultimate reason for including Section 37 of the Arbitration Act in the proviso to Section 13(1), the ratio decidendi of the judgment in Fuerst Day Lawson (supra) would apply, and this being so, appeals filed under Section 50 of the Arbitration Act would have to follow the drill of Section 50 alone.This, in fact, follows from the language of Section 50 itself. In all arbitration cases of enforcement of foreign awards, it is Section 50 alone that provides an appeal. Having provided for an appeal, the forum of appeal is left "to the Court authorized by law to hear appeals from such orders". Section 50 properly read would, therefore, mean that if an appeal lies under the said provision, then alone would Section 13(1) of the Commercial Courts Act be attracted as laying down the forum which will hear and decide such an appeal.In fact, in Sumitomo Corporation v. CDC Financial Services (Mauritius) Ltd. and Ors., (2008) 4 SCC 91 , this Court adverted to Section 50 of the Arbitration Act and to Sections 10(1)(a) and 10F of the Companies Act, 1956, to hold that once an appeal is provided for in Section 50, the Court authorized by law to hear such appeals would then be found in Sections 10(1) (a) and 10F of the Companies Act. The present case is a parallel instance of Section 50 of the Arbitration Act providing for an appeal, and Section 13(1) of the Commercial Courts Act providing the forum for such appeal. Only, in the present case, as no appeal lies under Section 50 of the Arbitration Act, no forum can be provided for.What is important to note is that it is Section 50 that provides for an appeal, and not the letters patent, given the subject matter of appeal. Also, the appeal has to be adjudicated within the parameters of Section 50 alone. Concomitantly, where Section 50 excludes an appeal, no such appeal will lie.In this view of the case, it is unnecessary to advert to Shri Giris arguments based on Section 21 of the Commercial Courts Act. Section 21 would only apply if Section 13(1) were to apply in the first place, which, as has been found, cannot be held to apply for the reasons given hereinabove. Equally, it is unnecessary to advert to the arguments of the learned counsel for the Appellants based on Section 11 of the Commercial Courts Act.The matter can be looked at from a slightly different angle. Given the objects of both the statutes, it is clear that arbitration itself is meant to be a speedy resolution of disputes between parties. Equally, enforcement of foreign awards should take place as soon as possible if India is to remain as an equal partner, commercially speaking, in the international community. In point of fact, the raison dêtre for the enactment of the Commercial Courts Act is that commercial disputes involving high amounts of money should be speedily decided. Given the objects of both the enactments, if we were to provide an additional appeal, when Section 50 does away with an appeal so as to speedily enforce foreign awards, we would be turning the Arbitration Act and the Commercial Courts Act on their heads. Admittedly, if the amount contained in a foreign award to be enforced in India were less than Rs. one crore, and a Single Judge of a High Court were to enforce such award, no appeal would lie, in keeping with the object of speedy enforcement of foreign awards. However, if, in the same fact circumstance, a foreign award were to be for Rs. one crore or more, if the Appellants are correct, enforcement of such award would be further delayed by providing an appeal under Section 13(1) of the Commercial Courts Act.such interpretation would lead to absurdity, and would be directly contrary to the object sought to be achieved by the Commercial Courts Act, viz., speedy resolution of disputes of a commercial nature involving a sum of Rs. 1 crore and over. For this reason also, we feel that Section 13(1) of the Commercial Courts Act must be construed in accordance with the object sought to be achieved by the Act.construction of Section 13 of the Commercial Courts Act, which would lead to further delay, instead of an expeditious enforcement of a foreign award must, therefore, be eschewed. Even on applying the doctrine of harmonious construction of both statutes, it is clear that they are best harmonized by giving effect to the special statute i.e. the Arbitration Act,the more general statute, namely the Commercial Courts Act, being left to operate in spheres other than arbitration. | 0 | 7,995 | 1,050 | ### 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 forum which will hear and decide such an appeal. 24. In fact, in Sumitomo Corporation v. CDC Financial Services (Mauritius) Ltd. and Ors., (2008) 4 SCC 91 , this Court adverted to Section 50 of the Arbitration Act and to Sections 10(1)(a) and 10F of the Companies Act, 1956, to hold that once an appeal is provided for in Section 50, the Court authorized by law to hear such appeals would then be found in Sections 10(1) (a) and 10F of the Companies Act. The present case is a parallel instance of Section 50 of the Arbitration Act providing for an appeal, and Section 13(1) of the Commercial Courts Act providing the forum for such appeal. Only, in the present case, as no appeal lies under Section 50 of the Arbitration Act, no forum can be provided for. 25. A recent judgment of this Court in Arun Dev Upadhyaya v. Integrated Sales Service Ltd., 2017(1) R.C.R.(Civil) 633 : 2017(1) Recent Apex Judgments (R.A.J.) 172 : (2016) 9 SCC 524 at 537 was adverted to by counsel for both sides. On facts, in this case, the Single Judge had refused to enforce a foreign award in favour of the appellants. The Respondents, in that case, claimed that an appeal from the Single Judge was not maintainable in view of the abolition of the letters patent appeal by a Maharashtra Act of 1986. This Court, following Fuerst Day Lawson (supra), repelled the aforesaid contention in the following terms: "25. The aforesaid provision clearly lays down that a forum is created i.e. Commercial Appellate Division. Section 50(1)(b) of the 1996 Act provides for an appeal. Section 50(1)(b) has not been amended by the Act that has come into force on 23-10-2015. Thus, an appeal under Section 50(1)(b) of the 1996 Act before the Division Bench is maintainable. 26. Thus analysed, we find that the impugned judgment [Integrated Sales Services Ltd. v. DMC Management Consultants Ltd., 2016 SCC OnLine Bom 4445] of the learned Single Judge under Section 50(1)(b) of the 1996 Act is passed in the Original Side of the High Court. Be that as it may, under Section 13 of the Act, the Single Judge has taken the decision. Section 13 bars an appeal under the Letters Patent unless an appeal is provided under the 1996 Act. Such an appeal is provided under Section 5 of the Act. The letters patent appeal could not have been invoked if Section 50 of the 1996 Act would not have provided for an appeal. But it does provide for an appeal. A conspectus reading of Sections 5 and 13 of the Act and Section 50 of the 1996 Act which has remained unamended leads to the irresistible conclusion that a letters patent appeal is maintainable before the Division Bench. It has to be treated as an appeal under Section 50(1)(b) of the 1996 Act and has to be adjudicated within the said parameters." 26. What is important to note is that it is Section 50 that provides for an appeal, and not the letters patent, given the subject matter of appeal. Also, the appeal has to be adjudicated within the parameters of Section 50 alone. Concomitantly, where Section 50 excludes an appeal, no such appeal will lie. 27. In this view of the case, it is unnecessary to advert to Shri Giris arguments based on Section 21 of the Commercial Courts Act. Section 21 would only apply if Section 13(1) were to apply in the first place, which, as has been found, cannot be held to apply for the reasons given hereinabove. Equally, it is unnecessary to advert to the arguments of the learned counsel for the Appellants based on Section 11 of the Commercial Courts Act. 28. The matter can be looked at from a slightly different angle. Given the objects of both the statutes, it is clear that arbitration itself is meant to be a speedy resolution of disputes between parties. Equally, enforcement of foreign awards should take place as soon as possible if India is to remain as an equal partner, commercially speaking, in the international community. In point of fact, the raison dêtre for the enactment of the Commercial Courts Act is that commercial disputes involving high amounts of money should be speedily decided. Given the objects of both the enactments, if we were to provide an additional appeal, when Section 50 does away with an appeal so as to speedily enforce foreign awards, we would be turning the Arbitration Act and the Commercial Courts Act on their heads. Admittedly, if the amount contained in a foreign award to be enforced in India were less than Rs. one crore, and a Single Judge of a High Court were to enforce such award, no appeal would lie, in keeping with the object of speedy enforcement of foreign awards. However, if, in the same fact circumstance, a foreign award were to be for Rs. one crore or more, if the Appellants are correct, enforcement of such award would be further delayed by providing an appeal under Section 13(1) of the Commercial Courts Act. Any such interpretation would lead to absurdity, and would be directly contrary to the object sought to be achieved by the Commercial Courts Act, viz., speedy resolution of disputes of a commercial nature involving a sum of Rs. 1 crore and over. For this reason also, we feel that Section 13(1) of the Commercial Courts Act must be construed in accordance with the object sought to be achieved by the Act. Any construction of Section 13 of the Commercial Courts Act, which would lead to further delay, instead of an expeditious enforcement of a foreign award must, therefore, be eschewed. Even on applying the doctrine of harmonious construction of both statutes, it is clear that they are best harmonized by giving effect to the special statute i.e. the Arbitration Act, vis-a-vis the more general statute, namely the Commercial Courts Act, being left to operate in spheres other than arbitration.
### Response:
0
### Explanation:
Given the judgment of this Court in Fuerst Day Lawson (supra), which Parliament is presumed to know when it enacted the Arbitration Amendment Act, 2015, and given the fact that no change was made in Section 50 of the Arbitration Act when the Commercial Courts Act was brought into force, it is clear that Section 50 is a provision contained in acode on matters pertaining to arbitration, and which is exhaustive in nature. It carries the negative import mentioned in paragraph 89 of Fuerst Day Lawson (supra) that appeals which are not mentioned therein, are not permissible. This being the case, it is clear that Section 13(1) of the Commercial Courts Act, being a general provisionarbitration relating to appeals arising out of commercial disputes, would obviously not apply to cases covered by Section 50 of the Arbitrationmay be the ultimate reason for including Section 37 of the Arbitration Act in the proviso to Section 13(1), the ratio decidendi of the judgment in Fuerst Day Lawson (supra) would apply, and this being so, appeals filed under Section 50 of the Arbitration Act would have to follow the drill of Section 50 alone.This, in fact, follows from the language of Section 50 itself. In all arbitration cases of enforcement of foreign awards, it is Section 50 alone that provides an appeal. Having provided for an appeal, the forum of appeal is left "to the Court authorized by law to hear appeals from such orders". Section 50 properly read would, therefore, mean that if an appeal lies under the said provision, then alone would Section 13(1) of the Commercial Courts Act be attracted as laying down the forum which will hear and decide such an appeal.In fact, in Sumitomo Corporation v. CDC Financial Services (Mauritius) Ltd. and Ors., (2008) 4 SCC 91 , this Court adverted to Section 50 of the Arbitration Act and to Sections 10(1)(a) and 10F of the Companies Act, 1956, to hold that once an appeal is provided for in Section 50, the Court authorized by law to hear such appeals would then be found in Sections 10(1) (a) and 10F of the Companies Act. The present case is a parallel instance of Section 50 of the Arbitration Act providing for an appeal, and Section 13(1) of the Commercial Courts Act providing the forum for such appeal. Only, in the present case, as no appeal lies under Section 50 of the Arbitration Act, no forum can be provided for.What is important to note is that it is Section 50 that provides for an appeal, and not the letters patent, given the subject matter of appeal. Also, the appeal has to be adjudicated within the parameters of Section 50 alone. Concomitantly, where Section 50 excludes an appeal, no such appeal will lie.In this view of the case, it is unnecessary to advert to Shri Giris arguments based on Section 21 of the Commercial Courts Act. Section 21 would only apply if Section 13(1) were to apply in the first place, which, as has been found, cannot be held to apply for the reasons given hereinabove. Equally, it is unnecessary to advert to the arguments of the learned counsel for the Appellants based on Section 11 of the Commercial Courts Act.The matter can be looked at from a slightly different angle. Given the objects of both the statutes, it is clear that arbitration itself is meant to be a speedy resolution of disputes between parties. Equally, enforcement of foreign awards should take place as soon as possible if India is to remain as an equal partner, commercially speaking, in the international community. In point of fact, the raison dêtre for the enactment of the Commercial Courts Act is that commercial disputes involving high amounts of money should be speedily decided. Given the objects of both the enactments, if we were to provide an additional appeal, when Section 50 does away with an appeal so as to speedily enforce foreign awards, we would be turning the Arbitration Act and the Commercial Courts Act on their heads. Admittedly, if the amount contained in a foreign award to be enforced in India were less than Rs. one crore, and a Single Judge of a High Court were to enforce such award, no appeal would lie, in keeping with the object of speedy enforcement of foreign awards. However, if, in the same fact circumstance, a foreign award were to be for Rs. one crore or more, if the Appellants are correct, enforcement of such award would be further delayed by providing an appeal under Section 13(1) of the Commercial Courts Act.such interpretation would lead to absurdity, and would be directly contrary to the object sought to be achieved by the Commercial Courts Act, viz., speedy resolution of disputes of a commercial nature involving a sum of Rs. 1 crore and over. For this reason also, we feel that Section 13(1) of the Commercial Courts Act must be construed in accordance with the object sought to be achieved by the Act.construction of Section 13 of the Commercial Courts Act, which would lead to further delay, instead of an expeditious enforcement of a foreign award must, therefore, be eschewed. Even on applying the doctrine of harmonious construction of both statutes, it is clear that they are best harmonized by giving effect to the special statute i.e. the Arbitration Act,the more general statute, namely the Commercial Courts Act, being left to operate in spheres other than arbitration.
|
Nani Bai Vs. Gita Bai Kom Rama Gunge | above said lands, neither I nor my heirs and executors of my will have any right whatsoever over the said property. As I am the male heir in the joint family by survivorship, nobody except me has any interest in the aforesaid lands. I have sold to you whatever interest I had in the said lands."It was further contended that even strangers to the family treated the brothers as joint in estate as shown by the execution proceedings and the sale certificates of the years 1903 to 1907, whereby Sadashiv was substituted as the sole heir and legal representative of the defendant Gundi, in the suit for money which resulted in the auction-sale referred to above, of the year 1907.10. If the transaction of the year 1892, is admissible in evidence for the purpose for which the document was used in the courts below, namely, to prove separation in estate, there is no room for ambiguity, and the position is clear that the three brothers had become separate. Further recitals in those documents that specific portions of the ancestral property had been allotted to the three brothers separately, being in the nature of a partition deed by the father in his life-time, and being unregistered, are inadmissible in evidence to prove such a partition. But the plaintiffs case does not depend upon proof of actual partition by metes and bounds. In the absence of any ambiguity, the later transactions would not be relevant except to show that there was a subsequent re-union amongst the brothers, which is no partys case.11. But it was argued on behalf of the appellants that those documents-Exs. D. 52, D-53 and D-55-are not admissible in evidence even for the limited purpose of showing separation in estate. The question, therefore, is whether those documents "purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property," within the meaning of s. 17 (1) (b) of the Registration Act. No authority has been cited before us in support of this contention.Partition in theMitaksharasense may be only a severance of the joint status of the members of the coparcenary, that is to say, what was once a joint title has become a divided title though there has been no division of any properties by metes and bonds. Partition may also mean what ordinarily is understood by partition amongst co-sharers who may not be members of a Hindu coparcenary. For partition in the former sense, it is not necessary that all the members of the joint family should agree, because it is a matter of individual volition. If a coparcener expresses his individual intention in unequivocal language to separate himself from the rest of the family, that effects a partition, so far as he is concerned, from the rest of the family. By this process, what was a joint tenancy has been converted into a tenancy in common. For partition in the latter sense of allotting specific properties or parcels to individual coparceners, agreement amongst all the coparceners is absolutely necessary. Such a partition may be effected orally, but if the parties reduce the transaction to a formal document which is intended to be the evidence of the partition, it has the effect of declaring the exclusive title of the coparcener to whom a particular property is allotted by partition, and is, thus, within the mischief of s. 17 (1) (b), the material portion of which has been quoted above. But partition in the former sense of defining the shares only without specific allotments of property, has no reference to immovable property. Such a transaction only affects the status of the member or the members who have separated themselves from the rest of the coparcenary. The change of status from a joint member of a coparcenary to a separated member having a defined share in the ancestral property, may be effected orally or it may be brought about by a document. If the document does not evidence any partition by metes and bounds, that is to say, the partition in the latter sense, it does not come within the purview of S. 17 (1) (b), because so long as there has been no partition in that sense, the interest of the separated member continues to extend over the whole joint property as before. Such a transaction does not purport of operate to do any of things referred to in that section. Hence, in so far as the documents referred to above are evidence of partition only in the former sense, they are not compulsorily registerable under S. 17, and would, therefore, not come within the mischief of S. 49 which prohibits the reception into evidence of any document "affecting immovable property."It must, therefore, be held that those documents have rightly been received in evidence for that limited purpose.12. Lastly, it was contended that if those documents of the year 1892 are admissible to prove separation amongst the three brothers, then, on the death of one of the three, namely, Rama, and of their mother, the entire ancestral properties including the mortgaged properties, vested in the two brothers in equal shares. Both by the auction-purchase of the year 1906 (D-57-D) and the sale deed (Ex. D-55 of the year 1909), Sadashivs moiety share in the mortgaged property, was purchased by Fulchand aforesaid. The plaintiff, therefore, could only claim the other moiety share of her father, Gundi. In our opinion, there is no answer to this contention because it is clear upon a proper construction of the three mortgage-bonds and on the plaintiffs own case that the entire ancestral properties and not only Gundis share, had been mortgaged. The appeal will, therefore, be allowed to the extent of the half share rightly belonging to Sadashiv, and the decree for possession after redemption will be confined to the other half belonging to the plaintiffs father.1 | 1[ds]In our opinion, there is no substance in this contention.The Sangli Act referred to above, had chosen the year 1915 as the date-line beyond which the Court was not competent to grant any relief to agriculturists, by way of re-opening of closed transactions. But that does not mean that the Court itself was incompetent to grant any other relief in respect of transactions of date prior to 1915.If the legislature had intended to limit the jurisdiction of the Special Court, as contended on behalf of the appellants, nothing would have been easier than to say in express terms that the Courts jurisdiction to grant relief was limited to transactions of that year and after, but there are no such words of limitation in any part of the statute. The operative portion of the statute does not contain any such provision. In our opinion, therefore, the Special Court was competent to entertain the suit for redemption, though it would not be competent to re-open those transactions even if any such question of re-opening closed transactions had been raised. But it is manifest that no such question arose out of the pleadings in this case. Hence, those words of limitation are wholly out of the way of the plaintiff. It may be mentioned that no such plea of want of jurisdiction of the trial Court, had been raised in the pleadings or in issues in the Courts below. This ground was raised, for the first time, in the statement of case in this court. The preliminary objection to the jurisdiction of the trial Court is, thusAs we are not satisfied, for the reasons given above, that Art. 134 is attracted to the present case, it is not necessary to pronounce upon that controversy. It is, thus, clear that if Arts. 12 and 134 of the Limitation Act, do not stand in the way of the plaintiffs right to recover possession the only other Article which will apply to the suit, is Art. 148. It is common ground that if that Article is applied, the suit is well withinappears that of the seven persons substituted on the record as the legal representatives of the original defendant No. 8, only defendants 8e, 8f an 8g were served, and the others, namely 8a, 8b, 8c and 8d were not served. On those facts, it was contended that the suit for redemption was bad in the absence of all the necessary parties. It was sought, at one stage of the arguments, to be argued that the suit had abated against defendant No. 8 , and this argument, in the High Court, was met by the observation that under O. XXII, R 4, Code of Civil Procedure, it was enough to bring on record only some out of the several legal representatives of a deceased party, on the authority of the judgment of the Bombay High Court in Mulchand v. Jairamdas, 37 Bom L. R.288 : (A I R 1935 Bom 287 ) (B).But on the facts stated above, there was no room for the application of R. 4, O. XXII of the Code. All the legal representatives, at any rate, all those persons who were said to be the legal representatives of the deceased defendant No. 8, had been substituted. Thus, the requirements of O. XXII had beenthese findings, it must be held that the preliminary objections raised on behalf of the defendants in bar of the suit, must be overruled. Hence, the whole suit cannot be held to be incompetent for the reason that the heirs of defendant No. 2 have been brought on the record.If the transaction of the year 1892, is admissible in evidence for the purpose for which the document was used in the courts below, namely, to prove separation in estate, there is no room for ambiguity, and the position is clear that the three brothers had become separate. Further recitals in those documents that specific portions of the ancestral property had been allotted to the three brothers separately, being in the nature of a partition deed by the father in his life-time, and being unregistered, are inadmissible in evidence to prove such a partition. But the plaintiffs case does not depend upon proof of actual partition by metes and bounds. In the absence of any ambiguity, the later transactions would not be relevant except to show that there was a subsequent re-union amongst the brothers, which is no partysauthority has been cited before us in support of this contention.Partition in theMitaksharasense may be only a severance of the joint status of the members of the coparcenary, that is to say, what was once a joint title has become a divided title though there has been no division of any properties by metes and bonds. Partition may also mean what ordinarily is understood by partition amongst co-sharers who may not be members of a Hindu coparcenary. For partition in the former sense, it is not necessary that all the members of the joint family should agree, because it is a matter of individual volition. If a coparcener expresses his individual intention in unequivocal language to separate himself from the rest of the family, that effects a partition, so far as he is concerned, from the rest of the family. By this process, what was a joint tenancy has been converted into a tenancy in common. For partition in the latter sense of allotting specific properties or parcels to individual coparceners, agreement amongst all the coparceners is absolutely necessary. Such a partition may be effected orally, but if the parties reduce the transaction to a formal document which is intended to be the evidence of the partition, it has the effect of declaring the exclusive title of the coparcener to whom a particular property is allotted by partition, and is, thus, within the mischief of s. 17 (1) (b), the material portion of which has been quoted above. But partition in the former sense of defining the shares only without specific allotments of property, has no reference to immovable property. Such a transaction only affects the status of the member or the members who have separated themselves from the rest of the coparcenary. The change of status from a joint member of a coparcenary to a separated member having a defined share in the ancestral property, may be effected orally or it may be brought about by a document. If the document does not evidence any partition by metes and bounds, that is to say, the partition in the latter sense, it does not come within the purview of S. 17 (1) (b), because so long as there has been no partition in that sense, the interest of the separated member continues to extend over the whole joint property as before. Such a transaction does not purport of operate to do any of things referred to in that section. Hence, in so far as the documents referred to above are evidence of partition only in the former sense, they are not compulsorily registerable under S. 17, and would, therefore, not come within the mischief of S. 49 which prohibits the reception into evidence of any document "affecting immovable property."It must, therefore, be held that those documents have rightly been received in evidence for that limitedour opinion, there is no answer to this contention because it is clear upon a proper construction of the three mortgage-bonds and on the plaintiffs own case that the entire ancestral properties and not only Gundis share, had been mortgaged. The appeal will, therefore, be allowed to the extent of the half share rightly belonging to Sadashiv, and the decree for possession after redemption will be confined to the other half belonging to the plaintiffs father. | 1 | 6,294 | 1,439 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
above said lands, neither I nor my heirs and executors of my will have any right whatsoever over the said property. As I am the male heir in the joint family by survivorship, nobody except me has any interest in the aforesaid lands. I have sold to you whatever interest I had in the said lands."It was further contended that even strangers to the family treated the brothers as joint in estate as shown by the execution proceedings and the sale certificates of the years 1903 to 1907, whereby Sadashiv was substituted as the sole heir and legal representative of the defendant Gundi, in the suit for money which resulted in the auction-sale referred to above, of the year 1907.10. If the transaction of the year 1892, is admissible in evidence for the purpose for which the document was used in the courts below, namely, to prove separation in estate, there is no room for ambiguity, and the position is clear that the three brothers had become separate. Further recitals in those documents that specific portions of the ancestral property had been allotted to the three brothers separately, being in the nature of a partition deed by the father in his life-time, and being unregistered, are inadmissible in evidence to prove such a partition. But the plaintiffs case does not depend upon proof of actual partition by metes and bounds. In the absence of any ambiguity, the later transactions would not be relevant except to show that there was a subsequent re-union amongst the brothers, which is no partys case.11. But it was argued on behalf of the appellants that those documents-Exs. D. 52, D-53 and D-55-are not admissible in evidence even for the limited purpose of showing separation in estate. The question, therefore, is whether those documents "purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property," within the meaning of s. 17 (1) (b) of the Registration Act. No authority has been cited before us in support of this contention.Partition in theMitaksharasense may be only a severance of the joint status of the members of the coparcenary, that is to say, what was once a joint title has become a divided title though there has been no division of any properties by metes and bonds. Partition may also mean what ordinarily is understood by partition amongst co-sharers who may not be members of a Hindu coparcenary. For partition in the former sense, it is not necessary that all the members of the joint family should agree, because it is a matter of individual volition. If a coparcener expresses his individual intention in unequivocal language to separate himself from the rest of the family, that effects a partition, so far as he is concerned, from the rest of the family. By this process, what was a joint tenancy has been converted into a tenancy in common. For partition in the latter sense of allotting specific properties or parcels to individual coparceners, agreement amongst all the coparceners is absolutely necessary. Such a partition may be effected orally, but if the parties reduce the transaction to a formal document which is intended to be the evidence of the partition, it has the effect of declaring the exclusive title of the coparcener to whom a particular property is allotted by partition, and is, thus, within the mischief of s. 17 (1) (b), the material portion of which has been quoted above. But partition in the former sense of defining the shares only without specific allotments of property, has no reference to immovable property. Such a transaction only affects the status of the member or the members who have separated themselves from the rest of the coparcenary. The change of status from a joint member of a coparcenary to a separated member having a defined share in the ancestral property, may be effected orally or it may be brought about by a document. If the document does not evidence any partition by metes and bounds, that is to say, the partition in the latter sense, it does not come within the purview of S. 17 (1) (b), because so long as there has been no partition in that sense, the interest of the separated member continues to extend over the whole joint property as before. Such a transaction does not purport of operate to do any of things referred to in that section. Hence, in so far as the documents referred to above are evidence of partition only in the former sense, they are not compulsorily registerable under S. 17, and would, therefore, not come within the mischief of S. 49 which prohibits the reception into evidence of any document "affecting immovable property."It must, therefore, be held that those documents have rightly been received in evidence for that limited purpose.12. Lastly, it was contended that if those documents of the year 1892 are admissible to prove separation amongst the three brothers, then, on the death of one of the three, namely, Rama, and of their mother, the entire ancestral properties including the mortgaged properties, vested in the two brothers in equal shares. Both by the auction-purchase of the year 1906 (D-57-D) and the sale deed (Ex. D-55 of the year 1909), Sadashivs moiety share in the mortgaged property, was purchased by Fulchand aforesaid. The plaintiff, therefore, could only claim the other moiety share of her father, Gundi. In our opinion, there is no answer to this contention because it is clear upon a proper construction of the three mortgage-bonds and on the plaintiffs own case that the entire ancestral properties and not only Gundis share, had been mortgaged. The appeal will, therefore, be allowed to the extent of the half share rightly belonging to Sadashiv, and the decree for possession after redemption will be confined to the other half belonging to the plaintiffs father.1
### Response:
1
### Explanation:
that controversy. It is, thus, clear that if Arts. 12 and 134 of the Limitation Act, do not stand in the way of the plaintiffs right to recover possession the only other Article which will apply to the suit, is Art. 148. It is common ground that if that Article is applied, the suit is well withinappears that of the seven persons substituted on the record as the legal representatives of the original defendant No. 8, only defendants 8e, 8f an 8g were served, and the others, namely 8a, 8b, 8c and 8d were not served. On those facts, it was contended that the suit for redemption was bad in the absence of all the necessary parties. It was sought, at one stage of the arguments, to be argued that the suit had abated against defendant No. 8 , and this argument, in the High Court, was met by the observation that under O. XXII, R 4, Code of Civil Procedure, it was enough to bring on record only some out of the several legal representatives of a deceased party, on the authority of the judgment of the Bombay High Court in Mulchand v. Jairamdas, 37 Bom L. R.288 : (A I R 1935 Bom 287 ) (B).But on the facts stated above, there was no room for the application of R. 4, O. XXII of the Code. All the legal representatives, at any rate, all those persons who were said to be the legal representatives of the deceased defendant No. 8, had been substituted. Thus, the requirements of O. XXII had beenthese findings, it must be held that the preliminary objections raised on behalf of the defendants in bar of the suit, must be overruled. Hence, the whole suit cannot be held to be incompetent for the reason that the heirs of defendant No. 2 have been brought on the record.If the transaction of the year 1892, is admissible in evidence for the purpose for which the document was used in the courts below, namely, to prove separation in estate, there is no room for ambiguity, and the position is clear that the three brothers had become separate. Further recitals in those documents that specific portions of the ancestral property had been allotted to the three brothers separately, being in the nature of a partition deed by the father in his life-time, and being unregistered, are inadmissible in evidence to prove such a partition. But the plaintiffs case does not depend upon proof of actual partition by metes and bounds. In the absence of any ambiguity, the later transactions would not be relevant except to show that there was a subsequent re-union amongst the brothers, which is no partysauthority has been cited before us in support of this contention.Partition in theMitaksharasense may be only a severance of the joint status of the members of the coparcenary, that is to say, what was once a joint title has become a divided title though there has been no division of any properties by metes and bonds. Partition may also mean what ordinarily is understood by partition amongst co-sharers who may not be members of a Hindu coparcenary. For partition in the former sense, it is not necessary that all the members of the joint family should agree, because it is a matter of individual volition. If a coparcener expresses his individual intention in unequivocal language to separate himself from the rest of the family, that effects a partition, so far as he is concerned, from the rest of the family. By this process, what was a joint tenancy has been converted into a tenancy in common. For partition in the latter sense of allotting specific properties or parcels to individual coparceners, agreement amongst all the coparceners is absolutely necessary. Such a partition may be effected orally, but if the parties reduce the transaction to a formal document which is intended to be the evidence of the partition, it has the effect of declaring the exclusive title of the coparcener to whom a particular property is allotted by partition, and is, thus, within the mischief of s. 17 (1) (b), the material portion of which has been quoted above. But partition in the former sense of defining the shares only without specific allotments of property, has no reference to immovable property. Such a transaction only affects the status of the member or the members who have separated themselves from the rest of the coparcenary. The change of status from a joint member of a coparcenary to a separated member having a defined share in the ancestral property, may be effected orally or it may be brought about by a document. If the document does not evidence any partition by metes and bounds, that is to say, the partition in the latter sense, it does not come within the purview of S. 17 (1) (b), because so long as there has been no partition in that sense, the interest of the separated member continues to extend over the whole joint property as before. Such a transaction does not purport of operate to do any of things referred to in that section. Hence, in so far as the documents referred to above are evidence of partition only in the former sense, they are not compulsorily registerable under S. 17, and would, therefore, not come within the mischief of S. 49 which prohibits the reception into evidence of any document "affecting immovable property."It must, therefore, be held that those documents have rightly been received in evidence for that limitedour opinion, there is no answer to this contention because it is clear upon a proper construction of the three mortgage-bonds and on the plaintiffs own case that the entire ancestral properties and not only Gundis share, had been mortgaged. The appeal will, therefore, be allowed to the extent of the half share rightly belonging to Sadashiv, and the decree for possession after redemption will be confined to the other half belonging to the plaintiffs father.
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Pandurang Narayandas Sarda Vs. Subhash Gopal Changale & Others | consideration the fact that the claimants would have been required to spend for education of the child and by the time he would have started earning the claimants would have been more than 40 and 50 years of age. Shri Sawant learned Counsel appearing for the claimants has placed strong reliance upon the decision of the Madhya Pradesh High Court in (United India Insurance c. v. Ismail and others) and particularly para 8 thereof, which reads as under :---"Learned Counsel for the claimant respondents has cited two cases involving death of young boys aged 7 years and 9 years respectively, namely, (Saraswatibai v. Damodar Prasad)8, 1987 Acc C J 501 High Court. of M.P. and (Hassa Mal v. Jatti Ram)9, (1987)1 T.A.C. 231, Rajasthan High Court In the first of these two cases, the amount of compensation assessed by the High Court in appeal was Rs. 50,000 and in the second it was assessed as Rs. 48,000/-. It is inevitable that in assessing compensation, element of estimate and to some extent conjecture enters into the computation of compensation, but comparable cases do provide satisfactory guidance in judging whether the Tribunals award as to quantum of compensation is arbitrary or unreasonable. The amount of compensation of Rs. 50,000 as assessed by the learned Tribunal cannot be regarded as excessive or unreasonable in the circumstances."In our view if the compensation awarded by the learned Member of the Tribunal is tested on this touch stone, it cannot be said that the compensation awarded is so exerbitant or is not based on any material so as to call for any interference in these appeals.10. In MACP No. 170 of 1984, the deceased Sharad was aged about 11 years and was taking education. He was the only male child of the claimants. There is no other male member in the family. The applicants are the mother and the sister of the child. The history shows that even the father of Sharad was murdered after the strike of Mill Workers in 1983. Parvatibai alone was maintaining the family and was getting Rs. 300 per month as pension from the Mill. Deceased Sharad had taken admission in the Vthe Standard in King George High School Dadar for Marathi medium. In all Tribunal has granted Rs. 40,000 as compensation to the claimants for the death of Sharad. Having regard to the fact that Sharad was the only male member of the family and was the hope of the future, coupled with the attending circumstances, it cannot be said that the compensation allowed at Rs. 40,000 call for any interference. It is pertinent to note in this behalf that the claimants had claimed Rs. 2 lacs as compensation and the learned Member has only awarded compensation to the tune of Rs. 40,000 out of which Rs. 15,000 is payable by the Insurance Company.11. It was then contended by Shri Kudrolli that so far as MACP No. 193 of 1984 is concerned, the boys Sudhakar and Prabhakar were aged about 14 and 11 years respectively. He has not disputed the grant of compensation to the tune of Rs. 35,000 for each child. However, according to him additional compensation of Rs. 16,000 granted to the claimants towards the amount spent for the treatment of applicants (i.e claimants) is wholly illegal as it is not based on any principles. It is also contended by him that for the pain and/or sufferings of the applicants nothing could be paid under the provisions of the Motor Vehicles Act. In support of this contention he has placed strong reliance upon a decision reported in 1986(1) A.C.J. 94 (Nasruddin & anr. v. Kadir Ahmed and anr)10 and a decision of the Supreme Court in A.I.R. 1985 S.C. 106 (N. Sivammal and ors v. The Managing Director, Pandian Roadways Corpn. and ors.)11, wherein the Supreme Court observed that "award of compensation under the head mental agony suffered by the claimants as a result of the death of the deceased cannot legally be sustained". Similar view seems to have been taken by the Full Bench of the Andhra Pradesh High Court in A.I.R. 1987 AP 127 (Andhra Pradesh State Road Corpn. Hyderabad v. Ch. Narasavva and ors.)12. No other view has been brought to out notice by Shri Sawant learned Counsel for the claimants nor he was able to justify the award of Rs. 16,000 under this head on any principles. Therefore, it will have to be held that the amount of compensation on the said head is wholly unsustainable. Hence that part of the finding and order passed by the Tribunal will have to be set aside and it will have to be held that the claimants in this case will be entitled to get compensation of Rs. 70,000 and not Rs. 86,000, as awarded by the Tribunal. It is needless to say that out of this Rs. 70,000 Insurance Company will be liable to pay Rs. 30,000 under section 92-A of the Act since the said claim involves death of two children.12. It was then contended by Shri Kudrolli that so far as MACP No. 248 of 1984 is concerned it is quite obvious from the evidence on record that Somnath the boy injured has suffered permanent disability because of the accident. From the evidence of the doctor it is clear that there were disfigurations on account of the scars of burns. The evidence further indicates that the burn injuries have resulted in permanent disablement. This position is not disputed by Shri Chaphekar. Therefore out of the total compensation of Rs. 28,000 granted for the personal injuries of Somnath. Rs. 7,500/- will be payable by the Insurance Company under section 92-A of the Act The tribunal has granted interest at the rate of 12% p a from the date of application itself, which is obviously in tune with the decision of the Supreme Court in A. I.R. 1987 S.C. 70 (Jagbir Singh and others v. General Manager, Punjab Roadways & ors.)13, the same is hereby confirmed. | 1[ds]3. Since in these appeals it is not disputed that the accident took place because of the rash and negligent driving of Kishor, it is not necessary to deal with the evidence in that behalf. To say the least from the evidence it appears that Kishor was not able to control the vehicle as a result the car left the road, crossed the Nala entered the Varandh of the hotel. Hence a conclusion is inavitable that the accident took place because of the rash and negligent driving of the drive Kishor, son of the owner of the car Pandurang Narayandasis not possible for us to accept this contention of Shri Kudroli. According to the owner of the car Pandurang, Kishor was born on 29th January, 1966 and if that date is taken as correct date of birth he attained the age of majority on 29th January, 1984 and therefore, was major on the date of accident. On the other hand it is the case of the Insurance Company that Kishor was born on 29th of July, 1966 which means he had not attained the age of majority on the date of accident. In support of its case the Insurance Company examined one Hindurao Shinde, who was entrusted with the investigation about the age of Kishor. Prabhakar Kende an employee of Narmada Education Academy was also examined. From the record produced by Prabhakar Kende it is clear that Kishor was admitted to the academy on 7th of June, 1971 and in the admission form Exhibit 78 his date of birth is shown as 29th of July, 1966, though the name of the boy is shown as Kamal Kishor. There is no dispute that Kishor is the same person. Exhibit 78 also shows that formarly he was studying in Bal Manohar Mandir Kanyashala at Satara and admission was taken at the age of 5 years. Exhibits 77 andare the school leaving certificates. In all these documents the date of birth is shown a 29th of July, 1966. From the evidence of Vijay Patil, who was working in the Sangamner Municipality coupled with the extract of entry in the birth register as well as in the nurshing home, it is quite obvious that Chandrakala w/o Pandurang N. Sarada of Sangamner delivered a boy on 29th of July, 1966. Though a dispute was raised that it could be another Sarada there is no doubt that the entry relates to Kishor and none else. The evidence of Mukund Gagdil who is running Vatsalaya Nurshing Home, corroborates the evidence given by the other witnesses and, therefore, we also agree with the finding recorded by the learned Member of the tribunal that the date of birth of Kishor is 29th of July, 1966. The other documentary evidence on which reliance was placed by the appellant is neither primary evidence nor there is any material to indicate on what basis the birth date was shown as 29th of January, 1966. The learned Member of the Tribunal has rightly commented upon the said document s and had come to the conclusion that the date of birth of Kishor is 29th of July, 1966 and, therefore, he was below 18 years of age on the date of83 shows that Kishor had applied on 6th of March 1984 for a learners licence and had deposited Rs. 6/under receipt No. 826326/6237/78 and it bears signature of Kishor. The serial number given in 14754. The said licence was valid upto 5th of June,1984. Exhibit 82 is the permanent driving licence of Kishor dated 6th June, 1984 obviously after the date of accident. However, we agree with the learned Member of the Tribunal that there are suspicious circumstances indicating that the evidence in that behalf is not trustworthy. Sanjay Kukade, as clerk from the RTO office, Pune who is incharge of licence department has stated that the alleged receipt is not available. Arun Sankpal also from the same office and working in the same department has stated that to obtain a permanent licence first the person has to obtain a learners licence. From the evidence it appears that as per the cash book the learners licence was issued in the name of one Bhapkar. Thus there is obvious discrepancy in the entry in the cash book which showed that the receipt was issued in the name of one Bhapkar though the learners licence is issued in the name of Kishor. He also stated that there is no entry in the name of Kishor on 6th of March, 1984. It is no doubt true that certain documents are not available on record since they are destroyed. Obviously therefore the so called learners licence is shrouded with suspicion. The learned Member has also rightly observed that Kishor is a resident of Satara and he had no business to go to Pune for obtaining a learners licence. Therefore we agree with the finding recorded by the learned Member of the Tribunal that Kishor was not having even a learners licence on the date ofis not possible for us to accept this contention of Shri Kudrolli. Section 3 and section 4 as well as rule 16 will have to be read together and if so read it is quite obvious that a person under the age of 18 years will not be entitled to get a learners licence qua a motor vehicle even under rule 16 of the Rules. Hence we have no hesitation in agreeing with the finding recorded by the learned Member of the Tribunal that Kishor was not having a valid driving licence on the date ofour view apart from the presumption that the driver was driving the vehicle with the knowledge and consent of the owner, which presumption is rebuttable in this case, the Insurance Company has discharged the burden of proving the said fact. Kishor, the driver of the car has stated in his deposition that on the date of accident, only his cousin brother Goverdhandas was present in the house and he took the keys of the car from the house and went towards Bogda withfor making a vague statement, it is no where stated by Kishor that he was not allowed to drive the vehicle by his father. His very conduct in taking the keys of the car from the house and going with his cousin brother clearly indicate that it was with the permission of his father. If Exhibit No. 64 statement of Pandurang recorded by the police could be relied upon, then the statement made by Kishor before the police could also be used to appreciate his evidence. In his statement before the police Kishor has stated that he was always taking the car for driving with the permission of his father and accordingly he has gone on that day also. Kishors previous statement was put to him when he was in the witness box. On the other hand Pandurang has not entered the witness box. Therefore on the basis of the evidence on record it is established by the Insurance Company that Kishor was driving the car with the permission of his father Pandurang. Hence the question of liability of the Insurance Company will have to be determined on the basis of this finding i.e. Kishor was a minor on the date of accident, that he was not holding any valid licence to drive the car and that he was driving the car with the permission of hisof the vehicle. In view of the aforesaid findings we agree with the view taken by the learned Member of the Tribunal that the Insurance Company is not liable to indemnify the owner of the car for the compensation.8. However, we find some substance in the contention of Shri Kudrolli that so far as the compensation payable under sectionof the Act, is concerned, the Insurance Company will be liable. To say the least this position is conceded by Shri Chaphekar. This concession of Shri Chaphekar is based on the decisions of the Supreme Court in A.I.R. 1987 S.C. 1660 (Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and anr.)4, and 1988(3) Bom.C.R. 29 : A.I.R. 1988 S.C. 1332 (Guru Govekar v. Miss Filomena F Lobo and others)5. In Guru Govekars case the Supreme Court has observed "while it may be true, as we have observed earlier, that under the Law of Torts, the owner may not be liable on the principle of vicarious liability, the insurer would be liable to pay the compensation by virtue of the provisions of section 94 and section 95 of the Act, referred to above". Therefore we hold that the Insurance Company will be liable to indemnify the owner so far as the compensation payable under sectionof the Motor Vehicle Act is concerned. Similar view seems to have been taken by the Rajasthan High Court in A.I.R. 1987 Rajasthan 77 (Narendra Singh v. Oriental FireGeneral Insurance Co. Ltd. Delhiors.)6, and A.I.R. 1987 Rajasthan 106 (Mohanlal v. National Insurance C. Ltd.n our view if the compensation awarded by the learned Member of the Tribunal is tested on this touch stone, it cannot be said that the compensation awarded is so exerbitant or is not based on any material so as to call for any interference in theseregard to the fact that Sharad was the only male member of the family and was the hope of the future, coupled with the attending circumstances, it cannot be said that the compensation allowed at Rs. 40,000 call for any interference. It is pertinent to note in this behalf that the claimants had claimed Rs. 2 lacs as compensation and the learned Member has only awarded compensation to the tune of Rs. 40,000 out of which Rs. 15,000 is payable by the Insuranceis needless to say that out of this Rs. 70,000 Insurance Company will be liable to pay Rs. 30,000 under sectionof the Act since the said claim involves death of twothe evidence of the doctor it is clear that there were disfigurations on account of the scars of burns. The evidence further indicates that the burn injuries have resulted in permanent disablement. This position is not disputed by Shri Chaphekar. Therefore out of the total compensation of Rs. 28,000 granted for the personal injuries of Somnath. Rs. 7,500/will be payable by the Insurance Company under sectionof the Act The tribunal has granted interest at the rate of 12% p a from the date of application itself, which is obviously in tune with the decision of the Supreme Court in A. I.R. 1987 S.C. 70 (Jagbir Singh and others v. General Manager, Punjab Roadwaysors.)13, the same is hereby confirmed. | 1 | 3,992 | 1,923 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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consideration the fact that the claimants would have been required to spend for education of the child and by the time he would have started earning the claimants would have been more than 40 and 50 years of age. Shri Sawant learned Counsel appearing for the claimants has placed strong reliance upon the decision of the Madhya Pradesh High Court in (United India Insurance c. v. Ismail and others) and particularly para 8 thereof, which reads as under :---"Learned Counsel for the claimant respondents has cited two cases involving death of young boys aged 7 years and 9 years respectively, namely, (Saraswatibai v. Damodar Prasad)8, 1987 Acc C J 501 High Court. of M.P. and (Hassa Mal v. Jatti Ram)9, (1987)1 T.A.C. 231, Rajasthan High Court In the first of these two cases, the amount of compensation assessed by the High Court in appeal was Rs. 50,000 and in the second it was assessed as Rs. 48,000/-. It is inevitable that in assessing compensation, element of estimate and to some extent conjecture enters into the computation of compensation, but comparable cases do provide satisfactory guidance in judging whether the Tribunals award as to quantum of compensation is arbitrary or unreasonable. The amount of compensation of Rs. 50,000 as assessed by the learned Tribunal cannot be regarded as excessive or unreasonable in the circumstances."In our view if the compensation awarded by the learned Member of the Tribunal is tested on this touch stone, it cannot be said that the compensation awarded is so exerbitant or is not based on any material so as to call for any interference in these appeals.10. In MACP No. 170 of 1984, the deceased Sharad was aged about 11 years and was taking education. He was the only male child of the claimants. There is no other male member in the family. The applicants are the mother and the sister of the child. The history shows that even the father of Sharad was murdered after the strike of Mill Workers in 1983. Parvatibai alone was maintaining the family and was getting Rs. 300 per month as pension from the Mill. Deceased Sharad had taken admission in the Vthe Standard in King George High School Dadar for Marathi medium. In all Tribunal has granted Rs. 40,000 as compensation to the claimants for the death of Sharad. Having regard to the fact that Sharad was the only male member of the family and was the hope of the future, coupled with the attending circumstances, it cannot be said that the compensation allowed at Rs. 40,000 call for any interference. It is pertinent to note in this behalf that the claimants had claimed Rs. 2 lacs as compensation and the learned Member has only awarded compensation to the tune of Rs. 40,000 out of which Rs. 15,000 is payable by the Insurance Company.11. It was then contended by Shri Kudrolli that so far as MACP No. 193 of 1984 is concerned, the boys Sudhakar and Prabhakar were aged about 14 and 11 years respectively. He has not disputed the grant of compensation to the tune of Rs. 35,000 for each child. However, according to him additional compensation of Rs. 16,000 granted to the claimants towards the amount spent for the treatment of applicants (i.e claimants) is wholly illegal as it is not based on any principles. It is also contended by him that for the pain and/or sufferings of the applicants nothing could be paid under the provisions of the Motor Vehicles Act. In support of this contention he has placed strong reliance upon a decision reported in 1986(1) A.C.J. 94 (Nasruddin & anr. v. Kadir Ahmed and anr)10 and a decision of the Supreme Court in A.I.R. 1985 S.C. 106 (N. Sivammal and ors v. The Managing Director, Pandian Roadways Corpn. and ors.)11, wherein the Supreme Court observed that "award of compensation under the head mental agony suffered by the claimants as a result of the death of the deceased cannot legally be sustained". Similar view seems to have been taken by the Full Bench of the Andhra Pradesh High Court in A.I.R. 1987 AP 127 (Andhra Pradesh State Road Corpn. Hyderabad v. Ch. Narasavva and ors.)12. No other view has been brought to out notice by Shri Sawant learned Counsel for the claimants nor he was able to justify the award of Rs. 16,000 under this head on any principles. Therefore, it will have to be held that the amount of compensation on the said head is wholly unsustainable. Hence that part of the finding and order passed by the Tribunal will have to be set aside and it will have to be held that the claimants in this case will be entitled to get compensation of Rs. 70,000 and not Rs. 86,000, as awarded by the Tribunal. It is needless to say that out of this Rs. 70,000 Insurance Company will be liable to pay Rs. 30,000 under section 92-A of the Act since the said claim involves death of two children.12. It was then contended by Shri Kudrolli that so far as MACP No. 248 of 1984 is concerned it is quite obvious from the evidence on record that Somnath the boy injured has suffered permanent disability because of the accident. From the evidence of the doctor it is clear that there were disfigurations on account of the scars of burns. The evidence further indicates that the burn injuries have resulted in permanent disablement. This position is not disputed by Shri Chaphekar. Therefore out of the total compensation of Rs. 28,000 granted for the personal injuries of Somnath. Rs. 7,500/- will be payable by the Insurance Company under section 92-A of the Act The tribunal has granted interest at the rate of 12% p a from the date of application itself, which is obviously in tune with the decision of the Supreme Court in A. I.R. 1987 S.C. 70 (Jagbir Singh and others v. General Manager, Punjab Roadways & ors.)13, the same is hereby confirmed.
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destroyed. Obviously therefore the so called learners licence is shrouded with suspicion. The learned Member has also rightly observed that Kishor is a resident of Satara and he had no business to go to Pune for obtaining a learners licence. Therefore we agree with the finding recorded by the learned Member of the Tribunal that Kishor was not having even a learners licence on the date ofis not possible for us to accept this contention of Shri Kudrolli. Section 3 and section 4 as well as rule 16 will have to be read together and if so read it is quite obvious that a person under the age of 18 years will not be entitled to get a learners licence qua a motor vehicle even under rule 16 of the Rules. Hence we have no hesitation in agreeing with the finding recorded by the learned Member of the Tribunal that Kishor was not having a valid driving licence on the date ofour view apart from the presumption that the driver was driving the vehicle with the knowledge and consent of the owner, which presumption is rebuttable in this case, the Insurance Company has discharged the burden of proving the said fact. Kishor, the driver of the car has stated in his deposition that on the date of accident, only his cousin brother Goverdhandas was present in the house and he took the keys of the car from the house and went towards Bogda withfor making a vague statement, it is no where stated by Kishor that he was not allowed to drive the vehicle by his father. His very conduct in taking the keys of the car from the house and going with his cousin brother clearly indicate that it was with the permission of his father. If Exhibit No. 64 statement of Pandurang recorded by the police could be relied upon, then the statement made by Kishor before the police could also be used to appreciate his evidence. In his statement before the police Kishor has stated that he was always taking the car for driving with the permission of his father and accordingly he has gone on that day also. Kishors previous statement was put to him when he was in the witness box. On the other hand Pandurang has not entered the witness box. Therefore on the basis of the evidence on record it is established by the Insurance Company that Kishor was driving the car with the permission of his father Pandurang. Hence the question of liability of the Insurance Company will have to be determined on the basis of this finding i.e. Kishor was a minor on the date of accident, that he was not holding any valid licence to drive the car and that he was driving the car with the permission of hisof the vehicle. In view of the aforesaid findings we agree with the view taken by the learned Member of the Tribunal that the Insurance Company is not liable to indemnify the owner of the car for the compensation.8. However, we find some substance in the contention of Shri Kudrolli that so far as the compensation payable under sectionof the Act, is concerned, the Insurance Company will be liable. To say the least this position is conceded by Shri Chaphekar. This concession of Shri Chaphekar is based on the decisions of the Supreme Court in A.I.R. 1987 S.C. 1660 (Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and anr.)4, and 1988(3) Bom.C.R. 29 : A.I.R. 1988 S.C. 1332 (Guru Govekar v. Miss Filomena F Lobo and others)5. In Guru Govekars case the Supreme Court has observed "while it may be true, as we have observed earlier, that under the Law of Torts, the owner may not be liable on the principle of vicarious liability, the insurer would be liable to pay the compensation by virtue of the provisions of section 94 and section 95 of the Act, referred to above". Therefore we hold that the Insurance Company will be liable to indemnify the owner so far as the compensation payable under sectionof the Motor Vehicle Act is concerned. Similar view seems to have been taken by the Rajasthan High Court in A.I.R. 1987 Rajasthan 77 (Narendra Singh v. Oriental FireGeneral Insurance Co. Ltd. Delhiors.)6, and A.I.R. 1987 Rajasthan 106 (Mohanlal v. National Insurance C. Ltd.n our view if the compensation awarded by the learned Member of the Tribunal is tested on this touch stone, it cannot be said that the compensation awarded is so exerbitant or is not based on any material so as to call for any interference in theseregard to the fact that Sharad was the only male member of the family and was the hope of the future, coupled with the attending circumstances, it cannot be said that the compensation allowed at Rs. 40,000 call for any interference. It is pertinent to note in this behalf that the claimants had claimed Rs. 2 lacs as compensation and the learned Member has only awarded compensation to the tune of Rs. 40,000 out of which Rs. 15,000 is payable by the Insuranceis needless to say that out of this Rs. 70,000 Insurance Company will be liable to pay Rs. 30,000 under sectionof the Act since the said claim involves death of twothe evidence of the doctor it is clear that there were disfigurations on account of the scars of burns. The evidence further indicates that the burn injuries have resulted in permanent disablement. This position is not disputed by Shri Chaphekar. Therefore out of the total compensation of Rs. 28,000 granted for the personal injuries of Somnath. Rs. 7,500/will be payable by the Insurance Company under sectionof the Act The tribunal has granted interest at the rate of 12% p a from the date of application itself, which is obviously in tune with the decision of the Supreme Court in A. I.R. 1987 S.C. 70 (Jagbir Singh and others v. General Manager, Punjab Roadwaysors.)13, the same is hereby confirmed.
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Rafat Ali Vs. Sugni Bai | damage, actual or presumed. Damage alone gives no right of action; the mere fact that an act causes loss to another does not make that act a nuisance.For the purposes of the law of nuisance an unlawful act is the interference by act or omission with a persons use or enjoyment of land or some right over or in connection with land." 13. Suffering of damage must be proved in a case of nuisance unless it can be presumed by law to exist. But the damage to amount to actionable nuisance must be substantial or at least of some significance. In other words, if the damage is insignificant or evanescent or trivial it would not be actionable nuisance. The following passage in para 312 of the same volume in Halbruys Laws of England is worth extracting in this context. "312. Damage essential. Damage, actual, prospective or presumed, is one of the essentials of nuisance. Its existence must be proved, except in those cases in which it is presumed by law to exist.The damage need not consist of pecuniary loss, but it must be material or substantial, that is, it must not be merely sentimental, speculative or trifling, or damage that is merely temporary, fleeting or evanescent." 14. It is clear from clause (iv) of Section 10(2) of the Act that what is envisaged therein is only private nuisance and not public nuisance. This can be discerned from the words "nuisance to the occupiers of other portions in the same building or buildings in the neigbourhood." Perhaps in a wide sense any industrial activity may create some sound while such activities are in operation. Such sound may be uncomfortable to those who are over sensitive to such noise. But then care must be taken because every inconvenience cannot become actionable nuisance. To make it actionable the nuiance must be of a reasonably perceptible degree as pointed out earlier.15. Rent Control Court considered landlords case regarding nuisance. Landlords said that the tenant was quarrelling with them "whenever they go for collection of rents." They have also alleged that appellant was running machines late in the night and thereby causing nuisance to the other occupiers of the building. As the appellant was running high business with the same machines right from the beginning, Rent Control Court was not inclined to treat such noise as amounting to nuisance. Appellate authority pointed out that "there was no complaint prior to filing of the eviction petition at any time against the tenant that the he caused damage to the building." On the other hand, the Rent Control Court noticed that machinery was installed in this building way back in 1970 and the same is under operation even now. On the above reasoning both the authorities uniformly concluded that tenant has not committed any act of nuisance to attract the ground of eviction. But the High Court upset such a finding in a very casual manner unmindful of the inherent limitations of the revisional jurisdiction.The third ground for eviction is related to causing damage to the building. For damage to the building to amount to a ground for eviction, its proportion must as delineated in clause (iii) of Section 10(2) of the Act: "That the tenant has committed such acts of waste as are likely to impair materially the value or utility of the building." 16. All acts of waste do not amount to a ground for eviction. It is only those acts of waste which would very probably impair the value of the building or its utility. The word "likely" in the above clause must be understood as a condition which is reasonably probable that such acts would cause impairment to the value or utility of the building. However, it is not enough that some impairment has been caused to the building. The value of the building or utility thereof should have been lessened in a reasonably substantial degree. Then only it can be said that the acts of waste are likely to impair the value or utility of the building "materially". In Om Pal v. Anand Swarup, 1988(2) RCC (Rent) 419: 1988(4) SCC 545 the Court, while considering a similarly worded clause in another Rent control enactment, has observed thus: "In order to attract Section 13(2)(iii) the construction must not only be one affecting or diminishing the value or utility of the building but such impairment must be of a material nature i.e. of substantial and significant nature. When a construction is alleged to materially impair the value or utility of a building the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building. The burden of proof of such material impairment is on the landlord." 17. An Advocate-Commissioner visited the building and pointed out the following features in his report regarding the damage noticed by him: "There is only concrete flooring with uneven surface. Due to the use of machinery there is a hole in the flooring on the eastern side and it was meant for inserting pipe. There was no damage to the roof and walls. Some nail-holes were also noticed. When the lathe machines were operated the Advocate Commissioner noticed that there was no vibration either on the ground floor or on the walls of the main building though very slight vibration was noticed on the parapet walls of the first floor."18. Both the fact finding courts found that the above items of damage are only trivial and will not affect the building. But the High Court found that "the landlords proved that the tenant caused damage to the demises premises by causing holes and leaving spaces between the shutter and the wall as seen from the Commissioners report." It was not open to the High Court to substitute the findings of the lower courts with its own findings so easily as that while exercising the limited supervisory jurisdiction. | 1[ds]14. It is clear from clause (iv) of Section 10(2) of the Act that what is envisaged therein is only private nuisance and not public nuisance. This can be discerned from the words "nuisance to the occupiers of other portions in the same building or buildings in the neigbourhood." Perhaps in a wide sense any industrial activity may create some sound while such activities are in operation. Such sound may be uncomfortable to those who are over sensitive to such noise. But then care must be taken because every inconvenience cannot become actionable nuisance. To make it actionable the nuiance must be of a reasonably perceptible degree as pointed out earlier.15. Rent Control Court considered landlords case regarding nuisance. Landlords said that the tenant was quarrelling with them "whenever they go for collection of rents." They have also alleged that appellant was running machines late in the night and thereby causing nuisance to the other occupiers of the building. As the appellant was running high business with the same machines right from the beginning, Rent Control Court was not inclined to treat such noise as amounting to nuisance. Appellate authority pointed out that "there was no complaint prior to filing of the eviction petition at any time against the tenant that the he caused damage to the building." On the other hand, the Rent Control Court noticed that machinery was installed in this building way back in 1970 and the same is under operation even now. On the above reasoning both the authorities uniformly concluded that tenant has not committed any act of nuisance to attract the ground of eviction. But the High Court upset such a finding in a very casual manner unmindful of the inherent limitations of the revisional jurisdiction.The third ground for eviction is related to causing damage to the building. For damage to the building to amount to a ground for eviction, its proportion must as delineated in clause (iii) of Section 10(2) of thethe tenant has committed such acts of waste as are likely to impair materially the value or utility of the building.All acts of waste do not amount to a ground for eviction. It is only those acts of waste which would very probably impair the value of the building or its utility. The word "likely" in the above clause must be understood as a condition which is reasonably probable that such acts would cause impairment to the value or utility of the building. However, it is not enough that some impairment has been caused to the building. The value of the building or utility thereof should have been lessened in a reasonably substantial degree. Then only it can be said that the acts of waste are likely to impair the value or utility of the building "materially".An Advocate-Commissioner visited the building and pointed out the following features in his report regarding the damage noticed by him: "There is only concrete flooring with uneven surface. Due to the use of machinery there is a hole in the flooring on the eastern side and it was meant for inserting pipe. There was no damage to the roof and walls. Some nail-holes were also noticed. When the lathe machines were operated the Advocate Commissioner noticed that there was no vibration either on the ground floor or on the walls of the main building though very slight vibration was noticed on the parapet walls of the first floor."18. Both the fact finding courts found that the above items of damage are only trivial and will not affect the building. But the High Court found that "the landlords proved that the tenant caused damage to the demises premises by causing holes and leaving spaces between the shutter and the wall as seen from the Commissioners report." It was not open to the High Court to substitute the findings of the lower courts with its own findings so easily as that while exercising the limited supervisory jurisdiction. | 1 | 3,015 | 723 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
damage, actual or presumed. Damage alone gives no right of action; the mere fact that an act causes loss to another does not make that act a nuisance.For the purposes of the law of nuisance an unlawful act is the interference by act or omission with a persons use or enjoyment of land or some right over or in connection with land." 13. Suffering of damage must be proved in a case of nuisance unless it can be presumed by law to exist. But the damage to amount to actionable nuisance must be substantial or at least of some significance. In other words, if the damage is insignificant or evanescent or trivial it would not be actionable nuisance. The following passage in para 312 of the same volume in Halbruys Laws of England is worth extracting in this context. "312. Damage essential. Damage, actual, prospective or presumed, is one of the essentials of nuisance. Its existence must be proved, except in those cases in which it is presumed by law to exist.The damage need not consist of pecuniary loss, but it must be material or substantial, that is, it must not be merely sentimental, speculative or trifling, or damage that is merely temporary, fleeting or evanescent." 14. It is clear from clause (iv) of Section 10(2) of the Act that what is envisaged therein is only private nuisance and not public nuisance. This can be discerned from the words "nuisance to the occupiers of other portions in the same building or buildings in the neigbourhood." Perhaps in a wide sense any industrial activity may create some sound while such activities are in operation. Such sound may be uncomfortable to those who are over sensitive to such noise. But then care must be taken because every inconvenience cannot become actionable nuisance. To make it actionable the nuiance must be of a reasonably perceptible degree as pointed out earlier.15. Rent Control Court considered landlords case regarding nuisance. Landlords said that the tenant was quarrelling with them "whenever they go for collection of rents." They have also alleged that appellant was running machines late in the night and thereby causing nuisance to the other occupiers of the building. As the appellant was running high business with the same machines right from the beginning, Rent Control Court was not inclined to treat such noise as amounting to nuisance. Appellate authority pointed out that "there was no complaint prior to filing of the eviction petition at any time against the tenant that the he caused damage to the building." On the other hand, the Rent Control Court noticed that machinery was installed in this building way back in 1970 and the same is under operation even now. On the above reasoning both the authorities uniformly concluded that tenant has not committed any act of nuisance to attract the ground of eviction. But the High Court upset such a finding in a very casual manner unmindful of the inherent limitations of the revisional jurisdiction.The third ground for eviction is related to causing damage to the building. For damage to the building to amount to a ground for eviction, its proportion must as delineated in clause (iii) of Section 10(2) of the Act: "That the tenant has committed such acts of waste as are likely to impair materially the value or utility of the building." 16. All acts of waste do not amount to a ground for eviction. It is only those acts of waste which would very probably impair the value of the building or its utility. The word "likely" in the above clause must be understood as a condition which is reasonably probable that such acts would cause impairment to the value or utility of the building. However, it is not enough that some impairment has been caused to the building. The value of the building or utility thereof should have been lessened in a reasonably substantial degree. Then only it can be said that the acts of waste are likely to impair the value or utility of the building "materially". In Om Pal v. Anand Swarup, 1988(2) RCC (Rent) 419: 1988(4) SCC 545 the Court, while considering a similarly worded clause in another Rent control enactment, has observed thus: "In order to attract Section 13(2)(iii) the construction must not only be one affecting or diminishing the value or utility of the building but such impairment must be of a material nature i.e. of substantial and significant nature. When a construction is alleged to materially impair the value or utility of a building the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building. The burden of proof of such material impairment is on the landlord." 17. An Advocate-Commissioner visited the building and pointed out the following features in his report regarding the damage noticed by him: "There is only concrete flooring with uneven surface. Due to the use of machinery there is a hole in the flooring on the eastern side and it was meant for inserting pipe. There was no damage to the roof and walls. Some nail-holes were also noticed. When the lathe machines were operated the Advocate Commissioner noticed that there was no vibration either on the ground floor or on the walls of the main building though very slight vibration was noticed on the parapet walls of the first floor."18. Both the fact finding courts found that the above items of damage are only trivial and will not affect the building. But the High Court found that "the landlords proved that the tenant caused damage to the demises premises by causing holes and leaving spaces between the shutter and the wall as seen from the Commissioners report." It was not open to the High Court to substitute the findings of the lower courts with its own findings so easily as that while exercising the limited supervisory jurisdiction.
### Response:
1
### Explanation:
14. It is clear from clause (iv) of Section 10(2) of the Act that what is envisaged therein is only private nuisance and not public nuisance. This can be discerned from the words "nuisance to the occupiers of other portions in the same building or buildings in the neigbourhood." Perhaps in a wide sense any industrial activity may create some sound while such activities are in operation. Such sound may be uncomfortable to those who are over sensitive to such noise. But then care must be taken because every inconvenience cannot become actionable nuisance. To make it actionable the nuiance must be of a reasonably perceptible degree as pointed out earlier.15. Rent Control Court considered landlords case regarding nuisance. Landlords said that the tenant was quarrelling with them "whenever they go for collection of rents." They have also alleged that appellant was running machines late in the night and thereby causing nuisance to the other occupiers of the building. As the appellant was running high business with the same machines right from the beginning, Rent Control Court was not inclined to treat such noise as amounting to nuisance. Appellate authority pointed out that "there was no complaint prior to filing of the eviction petition at any time against the tenant that the he caused damage to the building." On the other hand, the Rent Control Court noticed that machinery was installed in this building way back in 1970 and the same is under operation even now. On the above reasoning both the authorities uniformly concluded that tenant has not committed any act of nuisance to attract the ground of eviction. But the High Court upset such a finding in a very casual manner unmindful of the inherent limitations of the revisional jurisdiction.The third ground for eviction is related to causing damage to the building. For damage to the building to amount to a ground for eviction, its proportion must as delineated in clause (iii) of Section 10(2) of thethe tenant has committed such acts of waste as are likely to impair materially the value or utility of the building.All acts of waste do not amount to a ground for eviction. It is only those acts of waste which would very probably impair the value of the building or its utility. The word "likely" in the above clause must be understood as a condition which is reasonably probable that such acts would cause impairment to the value or utility of the building. However, it is not enough that some impairment has been caused to the building. The value of the building or utility thereof should have been lessened in a reasonably substantial degree. Then only it can be said that the acts of waste are likely to impair the value or utility of the building "materially".An Advocate-Commissioner visited the building and pointed out the following features in his report regarding the damage noticed by him: "There is only concrete flooring with uneven surface. Due to the use of machinery there is a hole in the flooring on the eastern side and it was meant for inserting pipe. There was no damage to the roof and walls. Some nail-holes were also noticed. When the lathe machines were operated the Advocate Commissioner noticed that there was no vibration either on the ground floor or on the walls of the main building though very slight vibration was noticed on the parapet walls of the first floor."18. Both the fact finding courts found that the above items of damage are only trivial and will not affect the building. But the High Court found that "the landlords proved that the tenant caused damage to the demises premises by causing holes and leaving spaces between the shutter and the wall as seen from the Commissioners report." It was not open to the High Court to substitute the findings of the lower courts with its own findings so easily as that while exercising the limited supervisory jurisdiction.
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Commissioner of Income Tax, West Bengal-II Calcutta Vs. M/s. Radha Kishan Nandlal | the branch firm. Jhunjhunwalla stated in his evidence that the sum of Rs. 55,416 which was shown by him as his share in the income of the branch firm was really the entire profit earned by that firm. Evidently the Tribunal disbelieved this but it held that Jhunihunwalla had an 8-anna share in the income of the branch firm. The income of the branch firm was on that basis estimated by the Tribunal at Rs. 1,10,000 odd. Deducting therefrom a sum of Rs. 25,000 for expenses inclusive of amounts payable to the working partners, the Tribunal held that the total income of the branch firm which could be included in the assessees income would come to a sum of Rs. 75,000 only.4. The appellant the Commissioner of Income-tax. West Bangal-II, Calcutta, thereafter filed an application under Section 66 (1) of the Income-tax Act, 1922 asking the Tribunal to refer to the High Court two questions of law said to arise out of its judgment. The Tribunal rejected that application.5. The appellant thereafter filed an application in the High Court of Calcutta under Section 66 (2) of the Act praying that the Tribunal be asked to refer the two questions to the High Court. The High Court granted a Rule on that application but discharged it without a speaking order. This Court gave to the appellant special leave to appea1 from the order of the High Court.6. The two questions on which the appellant sought reference to the High Court are these:"(1) Whether, on the facts and in the circumstances of the case, in holding that the total income of the assessee from the firm of Radhakiseen Nandlal Arhatwala which was to be included in the assessees assessment for the assessment year 1952-53 was only Rs. 75.000/- the Tribunal misdirected itself in law in basing its conclusion on some evidence ignoring other essential matters on record ?(2) Whether, on the facts and in the circumstances of the case, the said conclusion of the Tribunal was perverse in the sense that no reasonable man could come to it on the materials on record ?"7. The Tribunal accepted the contention of the Department that M/s. Radhakissen Nandlal Arhatwalla wag not an independent firm consisting of the partners of the assessee-firm and certain outsiders but that it was a branch of the assessee-firm, The Tribunal, however. found that the Income-tax Officer had estimated the income of the branch firm on a fallacious" basis, In coming to this conclusion the Tribunal thought that Subhkaran Jhunjhunwalla had an 8-anna share in the branch firm and therefore the income of that firm could only be estimated at two times the income shown by him, namely, at Rs. 1,10.000. We are unable to find the basis on which the Tribunal concluded that Jhunihunwalla had an 8-anna share in the profits of the branch firm.8. The Tribunal also attempted to make an estimate of the income of the branch firm on the basis of the advances made to it by the assessee-firm, In the accounting years relevant to the assessment years 1950-51 and 1951-52, such advances amounted to Rs, 30 lakhs odd and Rs. 64 lakhs odd respectively. The profits assessed for these years were respectively Rs. 33,000 odd and Rs. 1 lakh odd. The advances made by the assessee-firm to the branch firm for the relevant year being Rs. 58 lakhs odd, the Tribunal thought that it did not stand to reason that even though the advances made for the relevant year were less than the advances made for the assessment year 1951-52, the profits of the relevant year could be estimated at nearly Rs. 9 lakhs that is to say. 9 times more than the profits for the year 1951-52. This seems to us prima facie conjectural because the profit derived from a business does not depend wholly on the amount of capital employed in the business. The capital employed in the business can at best be one of the circumstances to be taken into account for estimating the profits of the business but that circumstance cannot be conclusive. The assessee did not choose to lead evidence of any of the relevant circumstances nor did it produce the books of accounts.9. In The Commr. of Income-tax. Punjab v. Indian Woollen Textile Mills (1964) 5 SCR 427 = (AIR 1964 SC 735 ) it was held that though the finding of fact recorded by the Tribunal is binding on the High Court. it must appear that the Tribunal had considered evidence covering all the essential matters before arriving at its conclusion and there hag to be some evidence to support the finding of the Tribunal. The finding of the Tribunal that Jhunihunwalla had an 8-anna share in the profits of the branch firm seems to be based on no evidence while its attempted estimate of the income of the branch firm on the basis of advances made to it by the assessee-firm seems prima facie conjectural and opposed to the evidence on record. Counsel for the respondent relies on the decision in Meenakshi Mills, Madurai v. Commr. of Income-tax. Madras, 1956 SCR 691 = (AIR 1957 SC 49 ) and contends that no question of law arises out of the judgment of the Tribunal but we are unable to see anything in that judgment to support the contention. That decision on the contrary holds that a finding based on no evidence results in an error of law.10. The judgment of the Tribunal thus raises the questions whether it misdirected itself in law in basing, its conclusion on some evidence ignoring the other essential matters on record and whether the conclusion to which it came is such as no reasonable person could have come to. It is necessary that these questions should be decided by the High Court. We might mention that the High Court was not right in discharging the Rule without giving any reasons.(See Commr of Income-tax (Central), Calcutta v, Daulatram Rawatmall. (1970) 78 ITR 318 (SC). | 1[ds]7. The Tribunal accepted the contention of the Department that M/s. Radhakissen Nandlal Arhatwalla wag not an independent firm consisting of the partners of theand certain outsiders but that it was a branch of theThe Tribunal, however. found that theOfficer had estimated the income of the branch firm on a fallacious" basis, In coming to this conclusion the Tribunal thought that Subhkaran Jhunjhunwalla had anshare in the branch firm and therefore the income of that firm could only be estimated at two times the income shown by him, namely, at Rs. 1,10.000. We are unable to find the basis on which the Tribunal concluded that Jhunihunwalla had anshare in the profits of the branch firm.In The Commr. ofPunjab v. Indian Woollen Textile Mills (1964) 5 SCR 427 = (AIR 1964 SC 735 ) it was held that though the finding of fact recorded by the Tribunal is binding on the High Court. it must appear that the Tribunal had considered evidence covering all the essential matters before arriving at its conclusion and there hag to be some evidence to support the finding of the Tribunal. The finding of the Tribunal that Jhunihunwalla had anshare in the profits of the branch firm seems to be based on no evidence while its attempted estimate of the income of the branch firm on the basis of advances made to it by theseems prima facie conjectural and opposed to the evidence on record.The judgment of the Tribunal thus raises the questions whether it misdirected itself in law in basing, its conclusion on some evidence ignoring the other essential matters on record and whether the conclusion to which it came is such as no reasonable person could have come to. It is necessary that these questions should be decided by the High Court. We might mention that the High Court was not right in discharging the Rule without giving any reasons.(See Commr of(Central), Calcutta v, Daulatram Rawatmall. (1970) 78 ITR 318 (SC). | 1 | 1,388 | 364 | ### 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:
the branch firm. Jhunjhunwalla stated in his evidence that the sum of Rs. 55,416 which was shown by him as his share in the income of the branch firm was really the entire profit earned by that firm. Evidently the Tribunal disbelieved this but it held that Jhunihunwalla had an 8-anna share in the income of the branch firm. The income of the branch firm was on that basis estimated by the Tribunal at Rs. 1,10,000 odd. Deducting therefrom a sum of Rs. 25,000 for expenses inclusive of amounts payable to the working partners, the Tribunal held that the total income of the branch firm which could be included in the assessees income would come to a sum of Rs. 75,000 only.4. The appellant the Commissioner of Income-tax. West Bangal-II, Calcutta, thereafter filed an application under Section 66 (1) of the Income-tax Act, 1922 asking the Tribunal to refer to the High Court two questions of law said to arise out of its judgment. The Tribunal rejected that application.5. The appellant thereafter filed an application in the High Court of Calcutta under Section 66 (2) of the Act praying that the Tribunal be asked to refer the two questions to the High Court. The High Court granted a Rule on that application but discharged it without a speaking order. This Court gave to the appellant special leave to appea1 from the order of the High Court.6. The two questions on which the appellant sought reference to the High Court are these:"(1) Whether, on the facts and in the circumstances of the case, in holding that the total income of the assessee from the firm of Radhakiseen Nandlal Arhatwala which was to be included in the assessees assessment for the assessment year 1952-53 was only Rs. 75.000/- the Tribunal misdirected itself in law in basing its conclusion on some evidence ignoring other essential matters on record ?(2) Whether, on the facts and in the circumstances of the case, the said conclusion of the Tribunal was perverse in the sense that no reasonable man could come to it on the materials on record ?"7. The Tribunal accepted the contention of the Department that M/s. Radhakissen Nandlal Arhatwalla wag not an independent firm consisting of the partners of the assessee-firm and certain outsiders but that it was a branch of the assessee-firm, The Tribunal, however. found that the Income-tax Officer had estimated the income of the branch firm on a fallacious" basis, In coming to this conclusion the Tribunal thought that Subhkaran Jhunjhunwalla had an 8-anna share in the branch firm and therefore the income of that firm could only be estimated at two times the income shown by him, namely, at Rs. 1,10.000. We are unable to find the basis on which the Tribunal concluded that Jhunihunwalla had an 8-anna share in the profits of the branch firm.8. The Tribunal also attempted to make an estimate of the income of the branch firm on the basis of the advances made to it by the assessee-firm, In the accounting years relevant to the assessment years 1950-51 and 1951-52, such advances amounted to Rs, 30 lakhs odd and Rs. 64 lakhs odd respectively. The profits assessed for these years were respectively Rs. 33,000 odd and Rs. 1 lakh odd. The advances made by the assessee-firm to the branch firm for the relevant year being Rs. 58 lakhs odd, the Tribunal thought that it did not stand to reason that even though the advances made for the relevant year were less than the advances made for the assessment year 1951-52, the profits of the relevant year could be estimated at nearly Rs. 9 lakhs that is to say. 9 times more than the profits for the year 1951-52. This seems to us prima facie conjectural because the profit derived from a business does not depend wholly on the amount of capital employed in the business. The capital employed in the business can at best be one of the circumstances to be taken into account for estimating the profits of the business but that circumstance cannot be conclusive. The assessee did not choose to lead evidence of any of the relevant circumstances nor did it produce the books of accounts.9. In The Commr. of Income-tax. Punjab v. Indian Woollen Textile Mills (1964) 5 SCR 427 = (AIR 1964 SC 735 ) it was held that though the finding of fact recorded by the Tribunal is binding on the High Court. it must appear that the Tribunal had considered evidence covering all the essential matters before arriving at its conclusion and there hag to be some evidence to support the finding of the Tribunal. The finding of the Tribunal that Jhunihunwalla had an 8-anna share in the profits of the branch firm seems to be based on no evidence while its attempted estimate of the income of the branch firm on the basis of advances made to it by the assessee-firm seems prima facie conjectural and opposed to the evidence on record. Counsel for the respondent relies on the decision in Meenakshi Mills, Madurai v. Commr. of Income-tax. Madras, 1956 SCR 691 = (AIR 1957 SC 49 ) and contends that no question of law arises out of the judgment of the Tribunal but we are unable to see anything in that judgment to support the contention. That decision on the contrary holds that a finding based on no evidence results in an error of law.10. The judgment of the Tribunal thus raises the questions whether it misdirected itself in law in basing, its conclusion on some evidence ignoring the other essential matters on record and whether the conclusion to which it came is such as no reasonable person could have come to. It is necessary that these questions should be decided by the High Court. We might mention that the High Court was not right in discharging the Rule without giving any reasons.(See Commr of Income-tax (Central), Calcutta v, Daulatram Rawatmall. (1970) 78 ITR 318 (SC).
### Response:
1
### Explanation:
7. The Tribunal accepted the contention of the Department that M/s. Radhakissen Nandlal Arhatwalla wag not an independent firm consisting of the partners of theand certain outsiders but that it was a branch of theThe Tribunal, however. found that theOfficer had estimated the income of the branch firm on a fallacious" basis, In coming to this conclusion the Tribunal thought that Subhkaran Jhunjhunwalla had anshare in the branch firm and therefore the income of that firm could only be estimated at two times the income shown by him, namely, at Rs. 1,10.000. We are unable to find the basis on which the Tribunal concluded that Jhunihunwalla had anshare in the profits of the branch firm.In The Commr. ofPunjab v. Indian Woollen Textile Mills (1964) 5 SCR 427 = (AIR 1964 SC 735 ) it was held that though the finding of fact recorded by the Tribunal is binding on the High Court. it must appear that the Tribunal had considered evidence covering all the essential matters before arriving at its conclusion and there hag to be some evidence to support the finding of the Tribunal. The finding of the Tribunal that Jhunihunwalla had anshare in the profits of the branch firm seems to be based on no evidence while its attempted estimate of the income of the branch firm on the basis of advances made to it by theseems prima facie conjectural and opposed to the evidence on record.The judgment of the Tribunal thus raises the questions whether it misdirected itself in law in basing, its conclusion on some evidence ignoring the other essential matters on record and whether the conclusion to which it came is such as no reasonable person could have come to. It is necessary that these questions should be decided by the High Court. We might mention that the High Court was not right in discharging the Rule without giving any reasons.(See Commr of(Central), Calcutta v, Daulatram Rawatmall. (1970) 78 ITR 318 (SC).
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Sangeeta Singh Vs. Union Of India | Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. vs. Yensavage 218 FR 547). The view was re-iterated in Union of India and others vs. Filip Tiago De Gama of Vedem Vasco De Gama (AIR 1990 SC 981 ). 8. In D.R. Venkatchalam and others etc. vs. Dy. Transport Commissioner and others etc. (AIR 1977 SC 842 ), it was observed that Courts must avoid the danger of a priori determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation. 9. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Commissioner of Sales Tax, M.P. vs. Popular Trading Company, Ujjain (2000 (5) SCC 511 ). The legislative casus omissus cannot be supplied by judicial interpretative process. 10. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danackwerts, L.J. in Artemiou vs. Procopiou (1966 1 QB 878), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislature and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke vs. IRC (1963 AC 557) where at p.577 he also observed: "this is not a new problem, though our standards of drafting is such that it rarely emerges". 11. It is then true that, "when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt". "But", on the other hand, "it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom" (See Fenton vs. Hampton (1858) XI Moore, P.C. 347. A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit proetereunt legislators, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - Casus omissus et oblivioni datus dispositioni communis juris relinquitur; "a casus omissus", observed Buller, J. in Jones vs. Smart (1 T.R. 52), "can in no case be supplied by a court of law, for that would be to make laws." The principles were examined in detail in Maulavi Hussein Haji Abraham Umarji vs. State of Gujarat and another, (JT 2004(6) SC 227 ). 12. The golden rule for construing all written instruments has been thus stated: "The grammatical and ordinary sense of the words is to be adhered to unless than would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further" (See Grey vs. Pearson (1857 (6) H.L. Cas. 61). The latter part of this "golden rule" must, however, be applied with much caution, "if", remarked Jervis, C.J., "the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning" (See Abley vs. Dale 11, C.B. 378). 13. In the aforesaid background the High Courts judgment cannot be maintained and is set aside. However, writ petitioner in writ petition no. 24966/2000 has taken the plea that other grounds were highlighted in the writ petition to show as to how the selected person was ineligible. The High Court has not dealt with any other issue and has disposed of only on the ground that the father-in-law was holding dealership, thereby rendering daughter-in-law ineligible. 14. We, therefore, remit the matter to the High Court for consideration of other issues raised. We make it clear that we have not expressed any opinion on any other issue then those indicated above. | 1[ds]5. It is well settled principle in law that the Court cannot read anything into a statutory provision or a stipulated condition which is a plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent. Similar is the position for conditions stipulated in advertisements9. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemede legislative casus omissus cannot be supplied by judicial interpretative process12. The golden rule for construing all written instruments has been thus stated: "The grammatical and ordinary sense of the words is to be adhered to unless than would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further" (SeeGrey vs. Pearson (1857 (6) H.L. Cas.61). The latter part of this "golden rule" must, however, be applied with much caution, "if", remarked Jervis, C.J., "the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning"13. In the aforesaid background the High Courts judgment cannot be maintained and is set aside. However, writ petitioner in writ petition no. 24966/2000 has taken the plea that other grounds were highlighted in the writ petition to show as to how the selected person was ineligible. The High Court has not dealt with any other issue and has disposed of only on the ground that the father-in-law was holding dealership, thereby rendering daughter-in-law ineligible14. We, therefore, remit the matter to the High Court for consideration of other issues raised. We make it clear that we have not expressed any opinion on any other issue then those indicated above. | 1 | 2,346 | 465 | ### 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:
Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. vs. Yensavage 218 FR 547). The view was re-iterated in Union of India and others vs. Filip Tiago De Gama of Vedem Vasco De Gama (AIR 1990 SC 981 ). 8. In D.R. Venkatchalam and others etc. vs. Dy. Transport Commissioner and others etc. (AIR 1977 SC 842 ), it was observed that Courts must avoid the danger of a priori determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation. 9. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Commissioner of Sales Tax, M.P. vs. Popular Trading Company, Ujjain (2000 (5) SCC 511 ). The legislative casus omissus cannot be supplied by judicial interpretative process. 10. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danackwerts, L.J. in Artemiou vs. Procopiou (1966 1 QB 878), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislature and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke vs. IRC (1963 AC 557) where at p.577 he also observed: "this is not a new problem, though our standards of drafting is such that it rarely emerges". 11. It is then true that, "when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt". "But", on the other hand, "it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom" (See Fenton vs. Hampton (1858) XI Moore, P.C. 347. A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit proetereunt legislators, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - Casus omissus et oblivioni datus dispositioni communis juris relinquitur; "a casus omissus", observed Buller, J. in Jones vs. Smart (1 T.R. 52), "can in no case be supplied by a court of law, for that would be to make laws." The principles were examined in detail in Maulavi Hussein Haji Abraham Umarji vs. State of Gujarat and another, (JT 2004(6) SC 227 ). 12. The golden rule for construing all written instruments has been thus stated: "The grammatical and ordinary sense of the words is to be adhered to unless than would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further" (See Grey vs. Pearson (1857 (6) H.L. Cas. 61). The latter part of this "golden rule" must, however, be applied with much caution, "if", remarked Jervis, C.J., "the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning" (See Abley vs. Dale 11, C.B. 378). 13. In the aforesaid background the High Courts judgment cannot be maintained and is set aside. However, writ petitioner in writ petition no. 24966/2000 has taken the plea that other grounds were highlighted in the writ petition to show as to how the selected person was ineligible. The High Court has not dealt with any other issue and has disposed of only on the ground that the father-in-law was holding dealership, thereby rendering daughter-in-law ineligible. 14. We, therefore, remit the matter to the High Court for consideration of other issues raised. We make it clear that we have not expressed any opinion on any other issue then those indicated above.
### Response:
1
### Explanation:
5. It is well settled principle in law that the Court cannot read anything into a statutory provision or a stipulated condition which is a plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent. Similar is the position for conditions stipulated in advertisements9. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemede legislative casus omissus cannot be supplied by judicial interpretative process12. The golden rule for construing all written instruments has been thus stated: "The grammatical and ordinary sense of the words is to be adhered to unless than would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further" (SeeGrey vs. Pearson (1857 (6) H.L. Cas.61). The latter part of this "golden rule" must, however, be applied with much caution, "if", remarked Jervis, C.J., "the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning"13. In the aforesaid background the High Courts judgment cannot be maintained and is set aside. However, writ petitioner in writ petition no. 24966/2000 has taken the plea that other grounds were highlighted in the writ petition to show as to how the selected person was ineligible. The High Court has not dealt with any other issue and has disposed of only on the ground that the father-in-law was holding dealership, thereby rendering daughter-in-law ineligible14. We, therefore, remit the matter to the High Court for consideration of other issues raised. We make it clear that we have not expressed any opinion on any other issue then those indicated above.
|
V.S. Ubhayakar & Others Vs. Special Director, Directorate of Enforcement & Others | diligence to prevent such contravention. Under the proviso, the burden lies on the person against whom a contravention is established by the deeming provisions of subsection (1).11. Both the adjudicating authority and the Tribunal have held concurrently that the burden that was cast upon the Appellants has not been discharged. During the course of the hearing of the Appeals, counsel appearing for the Appellants adverted to the statement of Shri Kirti Shah, (a Director of the company) that the officer in charge of the Bangalore office had been appointed based on his previous experience in foreign exchange operations with Thomas Cook; that he was instructed to adhere to the guidelines of the Reserve Bank and that after the appointment of an internal auditor in 1996, the Bangalore branch had been inspected twice and nothing adverse had been reported. The Managing Director also made the same statement. Moreover, reliance was further placed on the defence stated in the reply dated 12 March 1999 to the effect that the Reserve Bank had inspected the books of account of the company on more than three occasions and that the company expected its officer at Bangalore to comply with the terms and conditions of the Reserve Bank while selling foreign exchange to bonafide travellers. In our view, a mere averment that the company had exercised due diligence or that the contravention took place without the knowledge of the company or the officers responsible for the conduct of the business would not be suffice to establish a defence under the proviso to subsection (1) of Section 68. The burden of establishing a defence in terms of the proviso to subsection (1) of Section 68 lies upon the person against whom the contravention is established under the substantive part of the provision. The Tribunal was, in our view, justified in holding that a proper disclosure ought to have been made in regard to the internal arrangements made by the company for the proper conduct of the business in accordance with the guidelines of the Reserve Bank. That has not been explained. Perusing the statements and the reply upon which reliance has been placed on behalf of the Appellants at the hearing, it is evident that apart from a few vague averments, nothing has been established that would have enabled the adjudicating authority to hold that the defence was proved. As a Full Fledged Money Changer, the company is vested with custody of foreign exchange which has to be disbursed to bonafide travellers. The contravention in the present case is of a serious nature since it is evident that foreign exchange was disbursed to persons who were not bonafide travellers as in the case of the first notice to show cause under the BTQ scheme and to bogus entities as in the case of the second notice to show cause under the Business Visit Scheme. The contravention is therefore of a serious nature and it was for the Appellants to establish by leading cogent evidence a defence within the meaning of the proviso to subsection (1) of Section 68. That has not been done. The quantum of the penalty which has been imposed is not disproportionate. The company has been subjected to a penalty of Rs.2.50 lacs and Rs.1 lac respectively under the two notices to show cause; a personal penalty of Rs.50,000/- and Rs.25,000/- has been imposed on the Managing Director, while a penalty of Rs.50,000/- and Rs.25,000/- has been imposed on the Director. The quantum of the penalty imposed cannot be regarded as disproportionate to the nature of the contravention which is shown.12. The issue as to whether there was any connivance between the officials is relevant to subsection (2) of Section 68. Subsection (2) of Section 68 provides that notwithstanding anything contained in subsection (1), where the contravention of the Act or of a rule, direction or order has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed guilty of the contravention. The ambit of subsection (1) of Section 68 is hence distinct from the ambit of subsection (2). Under subsection (1) every person who was in charge of and was responsible to the company for the conduct of the business of the company at the time when the contravention was committed, as well as the company, are deemed to be guilty of the contravention. Under subsection (2) the persons who are brought within the framework of the provision are those with whose consent or connivance the contravention has taken place or upon whose neglect the contravention has arisen. Consequently, the point which has been stressed by counsel for the Appellants to the effect that the Special Director had observed that there was no connivance on the part of the Managing Director would not be material in determining their liability under subsection (1) of Section 68. Under subsection (1) of Section 68 as persons who were in charge of and were responsible to the company for the conduct of its business, both the Appellants are deemed guilty of the contravention and the burden would then lie upon them to establish the defence within the purview of the proviso to subsection (1). In the circumstances, having failed to establish their burden, the absence of connivance cannot come to the aid of the Appellants. The fact that the Appellants are found not to have obtained an unlawful monetary benefit may at the highest be relevant to the quantum of the penalty which we have found in any event not to be disproportionate. The appeal has been argued on the basis that the contravention is of Section 68(1) and that is why the proviso was pressed in aid.13. In view of the aforesaid position, no substantial question of law would arise in these appeals. | 0[ds]11. Both the adjudicating authority and the Tribunal have held concurrently that the burden that was cast upon the Appellants has not been discharged. During the course of the hearing of the Appeals, counsel appearing for the Appellants adverted to the statement of Shri Kirti Shah, (a Director of the company) that the officer in charge of the Bangalore office had been appointed based on his previous experience in foreign exchange operations with Thomas Cook; that he was instructed to adhere to the guidelines of the Reserve Bank and that after the appointment of an internal auditor in 1996, the Bangalore branch had been inspected twice and nothing adverse had been reported. The Managing Director also made the same statement. Moreover, reliance was further placed on the defence stated in the reply dated 12 March 1999 to the effect that the Reserve Bank had inspected the books of account of the company on more than three occasions and that the company expected its officer at Bangalore to comply with the terms and conditions of the Reserve Bank while selling foreign exchange to bonafide travellers. In our view, a mere averment that the company had exercised due diligence or that the contravention took place without the knowledge of the company or the officers responsible for the conduct of the business would not be suffice to establish a defence under the proviso to subsection (1) of Section 68. The burden of establishing a defence in terms of the proviso to subsection (1) of Section 68 lies upon the person against whom the contravention is established under the substantive part of the provision. The Tribunal was, in our view, justified in holding that a proper disclosure ought to have been made in regard to the internal arrangements made by the company for the proper conduct of the business in accordance with the guidelines of the Reserve Bank. That has not been explained. Perusing the statements and the reply upon which reliance has been placed on behalf of the Appellants at the hearing, it is evident that apart from a few vague averments, nothing has been established that would have enabled the adjudicating authority to hold that the defence was proved. As a Full Fledged Money Changer, the company is vested with custody of foreign exchange which has to be disbursed to bonafide travellers. The contravention in the present case is of a serious nature since it is evident that foreign exchange was disbursed to persons who were not bonafide travellers as in the case of the first notice to show cause under the BTQ scheme and to bogus entities as in the case of the second notice to show cause under the Business Visit Scheme. The contravention is therefore of a serious nature and it was for the Appellants to establish by leading cogent evidence a defence within the meaning of the proviso to subsection (1) of Section 68. That has not been done. The quantum of the penalty which has been imposed is not disproportionate. The company has been subjected to a penalty of Rs.2.50 lacs and Rs.1 lac respectively under the two notices to show cause; a personal penalty of Rs.50,000/as been imposed on the Managing Director, while a penalty of Rs.50,000/as been imposed on the Director. The quantum of the penalty imposed cannot be regarded as disproportionate to the nature of the contravention which is shown.12. The issue as to whether there was any connivance between the officials is relevant to subsection (2) of Section 68. Subsection (2) of Section 68 provides that notwithstanding anything contained in subsection (1), where the contravention of the Act or of a rule, direction or order has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed guilty of the contravention. The ambit of subsection (1) of Section 68 is hence distinct from the ambit of subsection (2). Under subsection (1) every person who was in charge of and was responsible to the company for the conduct of the business of the company at the time when the contravention was committed, as well as the company, are deemed to be guilty of the contravention. Under subsection (2) the persons who are brought within the framework of the provision are those with whose consent or connivance the contravention has taken place or upon whose neglect the contravention has arisen. Consequently, the point which has been stressed by counsel for the Appellants to the effect that the Special Director had observed that there was no connivance on the part of the Managing Director would not be material in determining their liability under subsection (1) of Section 68. Under subsection (1) of Section 68 as persons who were in charge of and were responsible to the company for the conduct of its business, both the Appellants are deemed guilty of the contravention and the burden would then lie upon them to establish the defence within the purview of the proviso to subsection (1). In the circumstances, having failed to establish their burden, the absence of connivance cannot come to the aid of the Appellants. The fact that the Appellants are found not to have obtained an unlawful monetary benefit may at the highest be relevant to the quantum of the penalty which we have found in any event not to be disproportionate. The appeal has been argued on the basis that the contravention is of Section 68(1) and that is why the proviso was pressed in aid.13. In view of the aforesaid position, no substantial question of law would arise in these appeals. | 0 | 3,462 | 1,060 | ### 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:
diligence to prevent such contravention. Under the proviso, the burden lies on the person against whom a contravention is established by the deeming provisions of subsection (1).11. Both the adjudicating authority and the Tribunal have held concurrently that the burden that was cast upon the Appellants has not been discharged. During the course of the hearing of the Appeals, counsel appearing for the Appellants adverted to the statement of Shri Kirti Shah, (a Director of the company) that the officer in charge of the Bangalore office had been appointed based on his previous experience in foreign exchange operations with Thomas Cook; that he was instructed to adhere to the guidelines of the Reserve Bank and that after the appointment of an internal auditor in 1996, the Bangalore branch had been inspected twice and nothing adverse had been reported. The Managing Director also made the same statement. Moreover, reliance was further placed on the defence stated in the reply dated 12 March 1999 to the effect that the Reserve Bank had inspected the books of account of the company on more than three occasions and that the company expected its officer at Bangalore to comply with the terms and conditions of the Reserve Bank while selling foreign exchange to bonafide travellers. In our view, a mere averment that the company had exercised due diligence or that the contravention took place without the knowledge of the company or the officers responsible for the conduct of the business would not be suffice to establish a defence under the proviso to subsection (1) of Section 68. The burden of establishing a defence in terms of the proviso to subsection (1) of Section 68 lies upon the person against whom the contravention is established under the substantive part of the provision. The Tribunal was, in our view, justified in holding that a proper disclosure ought to have been made in regard to the internal arrangements made by the company for the proper conduct of the business in accordance with the guidelines of the Reserve Bank. That has not been explained. Perusing the statements and the reply upon which reliance has been placed on behalf of the Appellants at the hearing, it is evident that apart from a few vague averments, nothing has been established that would have enabled the adjudicating authority to hold that the defence was proved. As a Full Fledged Money Changer, the company is vested with custody of foreign exchange which has to be disbursed to bonafide travellers. The contravention in the present case is of a serious nature since it is evident that foreign exchange was disbursed to persons who were not bonafide travellers as in the case of the first notice to show cause under the BTQ scheme and to bogus entities as in the case of the second notice to show cause under the Business Visit Scheme. The contravention is therefore of a serious nature and it was for the Appellants to establish by leading cogent evidence a defence within the meaning of the proviso to subsection (1) of Section 68. That has not been done. The quantum of the penalty which has been imposed is not disproportionate. The company has been subjected to a penalty of Rs.2.50 lacs and Rs.1 lac respectively under the two notices to show cause; a personal penalty of Rs.50,000/- and Rs.25,000/- has been imposed on the Managing Director, while a penalty of Rs.50,000/- and Rs.25,000/- has been imposed on the Director. The quantum of the penalty imposed cannot be regarded as disproportionate to the nature of the contravention which is shown.12. The issue as to whether there was any connivance between the officials is relevant to subsection (2) of Section 68. Subsection (2) of Section 68 provides that notwithstanding anything contained in subsection (1), where the contravention of the Act or of a rule, direction or order has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed guilty of the contravention. The ambit of subsection (1) of Section 68 is hence distinct from the ambit of subsection (2). Under subsection (1) every person who was in charge of and was responsible to the company for the conduct of the business of the company at the time when the contravention was committed, as well as the company, are deemed to be guilty of the contravention. Under subsection (2) the persons who are brought within the framework of the provision are those with whose consent or connivance the contravention has taken place or upon whose neglect the contravention has arisen. Consequently, the point which has been stressed by counsel for the Appellants to the effect that the Special Director had observed that there was no connivance on the part of the Managing Director would not be material in determining their liability under subsection (1) of Section 68. Under subsection (1) of Section 68 as persons who were in charge of and were responsible to the company for the conduct of its business, both the Appellants are deemed guilty of the contravention and the burden would then lie upon them to establish the defence within the purview of the proviso to subsection (1). In the circumstances, having failed to establish their burden, the absence of connivance cannot come to the aid of the Appellants. The fact that the Appellants are found not to have obtained an unlawful monetary benefit may at the highest be relevant to the quantum of the penalty which we have found in any event not to be disproportionate. The appeal has been argued on the basis that the contravention is of Section 68(1) and that is why the proviso was pressed in aid.13. In view of the aforesaid position, no substantial question of law would arise in these appeals.
### Response:
0
### Explanation:
11. Both the adjudicating authority and the Tribunal have held concurrently that the burden that was cast upon the Appellants has not been discharged. During the course of the hearing of the Appeals, counsel appearing for the Appellants adverted to the statement of Shri Kirti Shah, (a Director of the company) that the officer in charge of the Bangalore office had been appointed based on his previous experience in foreign exchange operations with Thomas Cook; that he was instructed to adhere to the guidelines of the Reserve Bank and that after the appointment of an internal auditor in 1996, the Bangalore branch had been inspected twice and nothing adverse had been reported. The Managing Director also made the same statement. Moreover, reliance was further placed on the defence stated in the reply dated 12 March 1999 to the effect that the Reserve Bank had inspected the books of account of the company on more than three occasions and that the company expected its officer at Bangalore to comply with the terms and conditions of the Reserve Bank while selling foreign exchange to bonafide travellers. In our view, a mere averment that the company had exercised due diligence or that the contravention took place without the knowledge of the company or the officers responsible for the conduct of the business would not be suffice to establish a defence under the proviso to subsection (1) of Section 68. The burden of establishing a defence in terms of the proviso to subsection (1) of Section 68 lies upon the person against whom the contravention is established under the substantive part of the provision. The Tribunal was, in our view, justified in holding that a proper disclosure ought to have been made in regard to the internal arrangements made by the company for the proper conduct of the business in accordance with the guidelines of the Reserve Bank. That has not been explained. Perusing the statements and the reply upon which reliance has been placed on behalf of the Appellants at the hearing, it is evident that apart from a few vague averments, nothing has been established that would have enabled the adjudicating authority to hold that the defence was proved. As a Full Fledged Money Changer, the company is vested with custody of foreign exchange which has to be disbursed to bonafide travellers. The contravention in the present case is of a serious nature since it is evident that foreign exchange was disbursed to persons who were not bonafide travellers as in the case of the first notice to show cause under the BTQ scheme and to bogus entities as in the case of the second notice to show cause under the Business Visit Scheme. The contravention is therefore of a serious nature and it was for the Appellants to establish by leading cogent evidence a defence within the meaning of the proviso to subsection (1) of Section 68. That has not been done. The quantum of the penalty which has been imposed is not disproportionate. The company has been subjected to a penalty of Rs.2.50 lacs and Rs.1 lac respectively under the two notices to show cause; a personal penalty of Rs.50,000/as been imposed on the Managing Director, while a penalty of Rs.50,000/as been imposed on the Director. The quantum of the penalty imposed cannot be regarded as disproportionate to the nature of the contravention which is shown.12. The issue as to whether there was any connivance between the officials is relevant to subsection (2) of Section 68. Subsection (2) of Section 68 provides that notwithstanding anything contained in subsection (1), where the contravention of the Act or of a rule, direction or order has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed guilty of the contravention. The ambit of subsection (1) of Section 68 is hence distinct from the ambit of subsection (2). Under subsection (1) every person who was in charge of and was responsible to the company for the conduct of the business of the company at the time when the contravention was committed, as well as the company, are deemed to be guilty of the contravention. Under subsection (2) the persons who are brought within the framework of the provision are those with whose consent or connivance the contravention has taken place or upon whose neglect the contravention has arisen. Consequently, the point which has been stressed by counsel for the Appellants to the effect that the Special Director had observed that there was no connivance on the part of the Managing Director would not be material in determining their liability under subsection (1) of Section 68. Under subsection (1) of Section 68 as persons who were in charge of and were responsible to the company for the conduct of its business, both the Appellants are deemed guilty of the contravention and the burden would then lie upon them to establish the defence within the purview of the proviso to subsection (1). In the circumstances, having failed to establish their burden, the absence of connivance cannot come to the aid of the Appellants. The fact that the Appellants are found not to have obtained an unlawful monetary benefit may at the highest be relevant to the quantum of the penalty which we have found in any event not to be disproportionate. The appeal has been argued on the basis that the contravention is of Section 68(1) and that is why the proviso was pressed in aid.13. In view of the aforesaid position, no substantial question of law would arise in these appeals.
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Sneh Gupta Vs. Devi Sarup | Section 7(1) of the 1952 Act read with Section 6 of the said Act, when brought to the notice of this Court, precluded the exercise of the power under Section 407 of the Code. There was no argument, no submission and no decision on this aspect at all. There was no prayer in the appeal which was pending before this Court for such directions. Furthermore, in giving such directions, this Court did not advert to or consider the effect of Anwar Ali Sarkar case which was a binding precedent. A mistake on the part of the court shall not cause prejudice to anyone. He further added that the primary duty of every court is to adjudicate the cases arising between the parties. According to him, it is certainly open to a larger Bench to take a view different from that taken by the earlier Bench, if it was manifestly erroneous and he urged that the trial of a corrupt Chief Minister before a High Court, instead of a judge designated by the State Government was not injurious to public interest that it should be overruled or set aside. He invited us to consider two questions: (1) does the impugned order promote justice? and (2) is it technically valid? After considering these two questions, we are clearly of the opinion that the answer to both these questions is in the negative. No prejudice need be proved for enforcing the fundamental rights. Violation of a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a nullity. Four valuable rights, it appears to us, of the appellant have been taken away by the impugned directions: (i) The right to be tried by a Special Judge in accordance with the procedure established by law and enacted by Parliament. (ii) The right of revision to the High Court under Section 9 of the Criminal Law Amendment Act. (iii) The right of first appeal to the High Court under the same section. (iv) The right to move the Supreme Court under Article 136 thereafter by way of a second appeal, if necessary. 55. We are concerned herein with a question of limitation. The compromise decree, as indicated hereinbefore, even if void was required to be set aside. A consent decree, as is well known, is as good as a contested decree. Such a decree must be set aside if it has been passed in violation of law. For the said purpose, the provisions contained in the Limitation Act, 1963 would be applicable. It is not the law that where the decree is void, no period of limitation shall be attracted at all. 56. In State of Rajasthan v. D.R. Laxmi [(1996) 4 SCC 445], this Court held: 10. The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances. It is seen that the acquisition has become final and not only possession had already been taken but reference was also sought for; the award of the Court under Section 26 enhancing the compensation was also accepted. The order of the appellate court had also become final. Under those circumstances, the acquisition proceedings having become final and the compensation determined also having become final, the High Court was highly unjustified in interfering with and in quashing the notification under Section 4(1) and declaration under Section 6. 57. Yet again, in M. Meenakshi v. Metadin Agarwal [(2006) 7 SCC 470] , this Court held: 18. It is a well-settled principle of law that even a void order is required to be set aside by a competent court of law inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non est. An order cannot be declared to be void in a collateral proceeding and that too in the absence of the authorities who were the authors thereof. The orders passed by the authorities were not found to be wholly without jurisdiction. They were not, thus, nullities. 58. Yet again, in Sultan Sadik v. Sanjay Raj Subba [(2004) 2 SCC 377] , this Court held: 39. An order may be void for one and voidable for the other. An invalid order necessarily need not be non est; in a given situation it has to be declared as such. In an election petition, the High Court was not concerned with the said issue. 59. Even otherwise, we do not think that any error has been committed by the High Court in arriving at the finding that the appellant had knowledge of the passing of the compromise decree much earlier. She did not file any application for condonation of delay. She filed two more applications for recall of the order dated 6.11.2004 in other enacted appeals. Those applications were also filed after expiry of the period of limitation and none of those applications were also accompanied with an application for condonation of delay. In absence of any application for condonation of delay, the Court had no jurisdiction in terms of Section 3 of the Limitation Act, 1963 to entertain the application for setting aside the decree. [See Dipak Chandra Ruhidas v. Chandan Kumar Sarkar [(2003) 7 SCC 66] ; and Sayeda Akhtar v. Abdul Ahad [(2003) (7) SCC 52] . 60. | 0[ds]Herein, we are not concerned with the effect of the earlier litigation. We are also not concerned with regard to the conduct of Smt. Veena Nirvanis the appellant and the other defendants and/or as to whether the litigation was being fought through the lawyers of the same chamber. Both the suits were compromised. Indisputably, the date fixed in the matter was July, 1998. The impugned compromise petition, however, was filed on 25.04.1998. For the aforementioned purpose, the date was preponed. Indisputably, the appellant was not informed thereabout. She was not given any notice of preponement of the date. The question as to whether the appellant knew thereabout or not is essentially a question of fact to which we would advert to a little later. It is, however, difficult for us to agree with the High Court as also the submissions of Mr. Dwivedi that the compromise was a comprehensive onelearned Additional District Judge, on the basis of the materials brought on record by the parties arrived at a finding of fact that the settlement was not a comprehensive one. He, furthermore, opined that none of the respondents appeared in the witness box to substantiate the terms and conditions of the compromise nor did they examine any other witness. The purported circumstances that Smt. Veena Nirwani was at the helm of the affairs in respect of both the matters sought to be emphasized before us being not based on any material on record, we are of the opinion that the finding of the High Court that a comprehensive settlement was arrived at must be held to be wholly incorrectHigh Court moreover was exercising its jurisdiction under Article 227 of the Constitution of India. While exercising the said jurisdiction, the High Court had a limited role to play. It is not the function of the High court while exercising its supervisory jurisdiction to enter into the disputed question of fact. It has not been found by the High Court that the findings arrived at by the learned Additional District Judge were perverse and/ or in arriving the said findings, the learned Additional District Judge failed and/ or neglected to take into consideration the relevant factors or based its decision on irrelevant factors not germane therefor. It could intervene, if there existed an error apparent on the face of the record or, if any other well known principle of judicial review was found to be applicable. See Yeshwant Sakhalkar and Another v. Hirabat Kamat Mhamai and Another [(2004) 6 SCC 71] . It is on the aforementioned backdrop, we may consider the legal effect ofg of the compromise petition by the appellant herein as also the respondent Nos. 4 to 8 hereinWe have noticed hereinbefore that not only the properties were different, the nature of the litigations was different. Even the parties were different. Both the compromise petitions do not refer to each other. Assuming that the parties knew thereabout, it is beyond anybodys comprehension as to why signature of all the parties were not obtained for the aforementioned purpose, if not for any other reason, but to satisfy the requirements of lawAppeals arising out of Suit No. 185 of 1989 and Suit No. 303 of 1999 were pending before different courts and in that view of the matter it is difficult to agree with the High Court that only for that purpose, the date in the appeal was preponed. Even otherwise, in law, they are not members of the same family. They have been inherited definite share from their predecessorsThe question of estoppel and/or election as also the doctrine of approbate or reprobate, whereupon reliance has been placed, has exceptions, one of them being that there is no estoppel against statute37. Submission of the learned senior counsel that Veena and the appellant were in the same boat as would appear from the fact that they had engaged lawyers from the same chamber and, in fact, the lawyer of the appellant had no independent practice itself would go to show that she knew about both the compromise petitions cannot be accepted. A counsel appearing for a party is expected to be independent. There is no presumption that only because two lawyers are practicing from the same chamber, they would breach their confidentiality or commit some act which would amount to professional misconduct. Only because two compromise petitions were filed on the same day or Veena was a party to both of them, in our opinion, would not by itself lead to any inference that appellant also knew about the second compromise through her counsel. We would, however, deal with the question of her acquiring knowledge thereof at appropriate stage38. Whether the preponement of the date was only at the instance of Veena or at the instance of both the parties to the consent is a matter which is of little relevance so far as this Court is concerned inasmuch as the only issue which would arise for our consideration is the consequences of such preponement. If the hearing of a case is preponed, it should be done with notice to all the parties. It is not the case of the first respondent that notice had been given to all the parties or otherwise also they were aware thereofMr. Jayant Bhushan would submit that the limitation would start to run from the date of knowledge. It is difficult to accept the said contention. Article 123 of the Limitation Act is in two parts. In a case where summons have been served upon a party, the first part shall apply. However, in a case where the summons have not been served, the second part shall apply. In this case, summons were served upon the appellant. They knew about the proceedings. They had engaged a lawyer. Indisputably, the case was fixed in July 1998. The only question, which would, thus, arise for our consideration is the effect of the preponement of the dateIf the compromise has been accepted in absence of all the parties, the same would be void. But if the same having resulted in grant of a decree, the decree based on compromise was required to be set aside. The compromise may be void or voidable but it is required to be set aside by filing a suit within the period of limitation. [See Mohd. Noorul Hoda v. Bibi Raifunnisa & Ors. [(1996) 7 SCC 767] . Limitation is a statute of repose. If a suit is not filed within the period of limitation, the remedy would be barred. As appellant had appeared in the appeal, as indicated hereinbefore, the first part shall apply. The suit was filed on 28.2.2002, i.e., after a gap of four years. There is no reason as to why the factum in regard to passing of the decree could not have been known in July or soon thereafterEven otherwise, we do not think that any error has been committed by the High Court in arriving at the finding that the appellant had knowledge of the passing of the compromise decree much earlier. She did not file any application for condonation of delay. She filed two more applications for recall of the order dated 6.11.2004 in other enacted appeals. Those applications were also filed after expiry of the period of limitation and none of those applications were also accompanied with an application for condonation of delay. In absence of any application for condonation of delay, the Court had no jurisdiction in terms of Section 3 of the Limitation Act, 1963 to entertain the application for setting aside the decree. [See Dipak Chandra Ruhidas v. Chandan Kumar Sarkar [(2003) 7 SCC 66] ; and Sayeda Akhtar v. Abdul Ahad [(2003) (7) SCC 52] . | 0 | 10,414 | 1,420 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
Section 7(1) of the 1952 Act read with Section 6 of the said Act, when brought to the notice of this Court, precluded the exercise of the power under Section 407 of the Code. There was no argument, no submission and no decision on this aspect at all. There was no prayer in the appeal which was pending before this Court for such directions. Furthermore, in giving such directions, this Court did not advert to or consider the effect of Anwar Ali Sarkar case which was a binding precedent. A mistake on the part of the court shall not cause prejudice to anyone. He further added that the primary duty of every court is to adjudicate the cases arising between the parties. According to him, it is certainly open to a larger Bench to take a view different from that taken by the earlier Bench, if it was manifestly erroneous and he urged that the trial of a corrupt Chief Minister before a High Court, instead of a judge designated by the State Government was not injurious to public interest that it should be overruled or set aside. He invited us to consider two questions: (1) does the impugned order promote justice? and (2) is it technically valid? After considering these two questions, we are clearly of the opinion that the answer to both these questions is in the negative. No prejudice need be proved for enforcing the fundamental rights. Violation of a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a nullity. Four valuable rights, it appears to us, of the appellant have been taken away by the impugned directions: (i) The right to be tried by a Special Judge in accordance with the procedure established by law and enacted by Parliament. (ii) The right of revision to the High Court under Section 9 of the Criminal Law Amendment Act. (iii) The right of first appeal to the High Court under the same section. (iv) The right to move the Supreme Court under Article 136 thereafter by way of a second appeal, if necessary. 55. We are concerned herein with a question of limitation. The compromise decree, as indicated hereinbefore, even if void was required to be set aside. A consent decree, as is well known, is as good as a contested decree. Such a decree must be set aside if it has been passed in violation of law. For the said purpose, the provisions contained in the Limitation Act, 1963 would be applicable. It is not the law that where the decree is void, no period of limitation shall be attracted at all. 56. In State of Rajasthan v. D.R. Laxmi [(1996) 4 SCC 445], this Court held: 10. The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances. It is seen that the acquisition has become final and not only possession had already been taken but reference was also sought for; the award of the Court under Section 26 enhancing the compensation was also accepted. The order of the appellate court had also become final. Under those circumstances, the acquisition proceedings having become final and the compensation determined also having become final, the High Court was highly unjustified in interfering with and in quashing the notification under Section 4(1) and declaration under Section 6. 57. Yet again, in M. Meenakshi v. Metadin Agarwal [(2006) 7 SCC 470] , this Court held: 18. It is a well-settled principle of law that even a void order is required to be set aside by a competent court of law inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non est. An order cannot be declared to be void in a collateral proceeding and that too in the absence of the authorities who were the authors thereof. The orders passed by the authorities were not found to be wholly without jurisdiction. They were not, thus, nullities. 58. Yet again, in Sultan Sadik v. Sanjay Raj Subba [(2004) 2 SCC 377] , this Court held: 39. An order may be void for one and voidable for the other. An invalid order necessarily need not be non est; in a given situation it has to be declared as such. In an election petition, the High Court was not concerned with the said issue. 59. Even otherwise, we do not think that any error has been committed by the High Court in arriving at the finding that the appellant had knowledge of the passing of the compromise decree much earlier. She did not file any application for condonation of delay. She filed two more applications for recall of the order dated 6.11.2004 in other enacted appeals. Those applications were also filed after expiry of the period of limitation and none of those applications were also accompanied with an application for condonation of delay. In absence of any application for condonation of delay, the Court had no jurisdiction in terms of Section 3 of the Limitation Act, 1963 to entertain the application for setting aside the decree. [See Dipak Chandra Ruhidas v. Chandan Kumar Sarkar [(2003) 7 SCC 66] ; and Sayeda Akhtar v. Abdul Ahad [(2003) (7) SCC 52] . 60.
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exercising the said jurisdiction, the High Court had a limited role to play. It is not the function of the High court while exercising its supervisory jurisdiction to enter into the disputed question of fact. It has not been found by the High Court that the findings arrived at by the learned Additional District Judge were perverse and/ or in arriving the said findings, the learned Additional District Judge failed and/ or neglected to take into consideration the relevant factors or based its decision on irrelevant factors not germane therefor. It could intervene, if there existed an error apparent on the face of the record or, if any other well known principle of judicial review was found to be applicable. See Yeshwant Sakhalkar and Another v. Hirabat Kamat Mhamai and Another [(2004) 6 SCC 71] . It is on the aforementioned backdrop, we may consider the legal effect ofg of the compromise petition by the appellant herein as also the respondent Nos. 4 to 8 hereinWe have noticed hereinbefore that not only the properties were different, the nature of the litigations was different. Even the parties were different. Both the compromise petitions do not refer to each other. Assuming that the parties knew thereabout, it is beyond anybodys comprehension as to why signature of all the parties were not obtained for the aforementioned purpose, if not for any other reason, but to satisfy the requirements of lawAppeals arising out of Suit No. 185 of 1989 and Suit No. 303 of 1999 were pending before different courts and in that view of the matter it is difficult to agree with the High Court that only for that purpose, the date in the appeal was preponed. Even otherwise, in law, they are not members of the same family. They have been inherited definite share from their predecessorsThe question of estoppel and/or election as also the doctrine of approbate or reprobate, whereupon reliance has been placed, has exceptions, one of them being that there is no estoppel against statute37. Submission of the learned senior counsel that Veena and the appellant were in the same boat as would appear from the fact that they had engaged lawyers from the same chamber and, in fact, the lawyer of the appellant had no independent practice itself would go to show that she knew about both the compromise petitions cannot be accepted. A counsel appearing for a party is expected to be independent. There is no presumption that only because two lawyers are practicing from the same chamber, they would breach their confidentiality or commit some act which would amount to professional misconduct. Only because two compromise petitions were filed on the same day or Veena was a party to both of them, in our opinion, would not by itself lead to any inference that appellant also knew about the second compromise through her counsel. We would, however, deal with the question of her acquiring knowledge thereof at appropriate stage38. Whether the preponement of the date was only at the instance of Veena or at the instance of both the parties to the consent is a matter which is of little relevance so far as this Court is concerned inasmuch as the only issue which would arise for our consideration is the consequences of such preponement. If the hearing of a case is preponed, it should be done with notice to all the parties. It is not the case of the first respondent that notice had been given to all the parties or otherwise also they were aware thereofMr. Jayant Bhushan would submit that the limitation would start to run from the date of knowledge. It is difficult to accept the said contention. Article 123 of the Limitation Act is in two parts. In a case where summons have been served upon a party, the first part shall apply. However, in a case where the summons have not been served, the second part shall apply. In this case, summons were served upon the appellant. They knew about the proceedings. They had engaged a lawyer. Indisputably, the case was fixed in July 1998. The only question, which would, thus, arise for our consideration is the effect of the preponement of the dateIf the compromise has been accepted in absence of all the parties, the same would be void. But if the same having resulted in grant of a decree, the decree based on compromise was required to be set aside. The compromise may be void or voidable but it is required to be set aside by filing a suit within the period of limitation. [See Mohd. Noorul Hoda v. Bibi Raifunnisa & Ors. [(1996) 7 SCC 767] . Limitation is a statute of repose. If a suit is not filed within the period of limitation, the remedy would be barred. As appellant had appeared in the appeal, as indicated hereinbefore, the first part shall apply. The suit was filed on 28.2.2002, i.e., after a gap of four years. There is no reason as to why the factum in regard to passing of the decree could not have been known in July or soon thereafterEven otherwise, we do not think that any error has been committed by the High Court in arriving at the finding that the appellant had knowledge of the passing of the compromise decree much earlier. She did not file any application for condonation of delay. She filed two more applications for recall of the order dated 6.11.2004 in other enacted appeals. Those applications were also filed after expiry of the period of limitation and none of those applications were also accompanied with an application for condonation of delay. In absence of any application for condonation of delay, the Court had no jurisdiction in terms of Section 3 of the Limitation Act, 1963 to entertain the application for setting aside the decree. [See Dipak Chandra Ruhidas v. Chandan Kumar Sarkar [(2003) 7 SCC 66] ; and Sayeda Akhtar v. Abdul Ahad [(2003) (7) SCC 52] .
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Commissioner of Sales Tax, U.P., Lucknow Vs. Harbilas Rai and Sons | pigs, ..... It is possible that if in sorting the sizes just a few ends project beyond others, they may be clipped a little only for uniformity of size. There is no actual cutting of either end."Relevant portion of section 2(h) of the Act reads as follows :"(h) Sale means, within its grammatical variations and cognate expressions, any transfer of property in goods for cash or deferred payment or other valuable consideration and includes forward contracts but does not include a mortgage, hypothecation, charge or pledge;Explanation I ............Explanation II. - Notwithstanding anything in the Indian Sale of Goods Act, 1930, or any other law for the time being in force, the sale of any goods -(i) which are actually in Uttar Pradesh at the time when in respect thereof, the contract of sale as defined in section 4 of that Act is made,(ii) or which are produced or manufactured in Uttar Pradesh, by the producer or manufacturer thereof, shall wherever the delivery or contract of sale is made, be deemed for the purposes of this Act to have taken place in Uttar Pradesh."3. The High Court, after setting out the facts, held that the assessees were not manufacturers. Desai, C.J., observed :"All that it does to the bristles bought from Kanjars does not amount to manufacturing. It does not result in the production of a commercially different article; what is bought by it from Kanjars is bristles and what it exports for sale is also bristles. It is not possible to say that the assessee manufactures pig bristles out of pig bristles; cleaning and arranging into different groups of different sizes and different colours does not convert them into something essentially or commercially different."4. We agree with the observations of the learned Chief Justice. The learned counsel for the appellant relied on G. R. Kulkarni v. The State ([1957] 8 S.T.C. 294) and Hiralal Jitmal v. Commissioner of Sales Tax ([1957] 8 S.T.C. 325) in support of his submission that the bristles were manufactured goods within the meaning of section 2(h), Explanation II(ii). But, in our opinion, the first case is distinguishable. In that case the High Court of Madhya Pradesh held that the breaking of boulders into metal (gitti) was "manufacture" within the meaning of section 2(i)(a) of the Madhya Pradesh Sales Tax Act, 1947. The High Court observed in that case that "the essence of manufacture is the changing of one object into another for the purposes of making it marketable." The High Court further observed that "the man who manufactures metal is manufacturing a new article which has got a different price and that price includes labour which goes into its manufacture". The facts in the present case are different as no new articles were produced by the assessees; the articles which they produced are known as bristles both in the form in which these are bought from Kanjars and the form in which these are sold at London.In the second case, it was held that "a person who is engaged in the work of printing and dyeing textiles purchased by him and in the business of selling or supplying the printed and dyed material is a manufacturer within the meaning of the definition given in section 2(k) of the Madhya Bharat Sales Tax Act, 1950." There are some observations which do assist the appellant, for the High Court observed :"In common parlance to manufacture goods means to bring goods into being. To manufacture goods for sale would, therefore, mean to bring into being something in a form in which it is capable of being sold or supplied in the course of business. In my opinion, to constitute manufacture for the purposes of the Act, it is not necessary that there must be a transformation in the materials and that the transformation must have progressed so far that the manufactured article becomes commercially known as another and different article from the raw materials. All that is necessary is that the material should have been changed or modified by mans art, or industry so as to make it capable of being sold in an acceptable form to satisfy some want, or desire, or fancy or taste of man."5. In our view, the word "manufacture" has various shades of meaning, and in the context of sales tax legislation, if the goods to which some labour is applied remain essentially the same commercial article, it cannot be said that the final product is the result of manufacture. The decision of the Madhya Pradesh High Court might perhaps be justified on the ground that a printed or dyed cloth is commercially a different article from the cloth which is purchased and printed or dyed. In a recent case, Devi Dass Gopal Krishnan v. The State of Punjab (Civil Appeals Nos. 526, 527 and 529 of 1964; judgment delivered on April 10, 1967; 20 S.T.C. 430), this Court considered the meaning of "manufacture" in section 2(ff) of the Punjab General Sales Tax Act, 1948. Subba Rao, C.J., observed :"On the other hand, the dictionary meaning of manufacture is transform or fashion raw materials into a changed form for use. When oil is produced out of the seeds the process certainly transforms raw material into different article for use. We cannot, therefore, accept this contention.6. Now coming to Civil Appeals Nos. 39 to 43 of 1965, the first additional point raised is that when iron scrap is converted into rolled steel it does not involve the process of manufacture. It is contended that the said conversion does not involve any process of manufacture, but the scrap is made into a better marketable commodity. Before the High Court this contention was not pressed. The apart, it is clear that scrap iron ingots undergo a vital change in the process of manufacture and are converted into a different commodity, viz., rolled steel sections. During the process the scrap iron loses it identity and becomes a new marketable commodity. The process is certainly one of manufacture." | 0[ds]5. In our view, the word "manufacture" has various shades of meaning, and in the context of sales tax legislation, if the goods to which some labour is applied remain essentially the same commercial article, it cannot be said that the final product is the result of manufacture. The decision of the Madhya Pradesh High Court might perhaps be justified on the ground that a printed or dyed cloth is commercially a different article from the cloth which is purchased and printed or dyed. In a recent case, Devi Dass Gopal Krishnan v. The State of Punjab (Civil Appeals Nos. 526, 527 and 529 of 1964; judgment delivered on April 10, 1967; 20 S.T.C. 430), this Court considered the meaning of "manufacture" in section 2(ff) of the Punjab General Sales Tax Act, 1948. Subba Rao, C.J., observed :"On the other hand, the dictionary meaning of manufacture is transform or fashion raw materials into a changed form for use. When oil is produced out of the seeds the process certainly transforms raw material into different article for use. We cannot, therefore, accept this contention.6. Now coming to Civil Appeals Nos. 39 to 43 of 1965, the first additional point raised is that when iron scrap is converted into rolled steel it does not involve the process of manufacture. It is contended that the said conversion does not involve any process of manufacture, but the scrap is made into a better marketable commodity. Before the High Court this contention was not pressed. The apart, it is clear that scrap iron ingots undergo a vital change in the process of manufacture and are converted into a different commodity, viz., rolled steel sections. During the process the scrap iron loses it identity and becomes a new marketable commodity. The process is certainly one of manufacture." | 0 | 1,548 | 356 | ### 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:
pigs, ..... It is possible that if in sorting the sizes just a few ends project beyond others, they may be clipped a little only for uniformity of size. There is no actual cutting of either end."Relevant portion of section 2(h) of the Act reads as follows :"(h) Sale means, within its grammatical variations and cognate expressions, any transfer of property in goods for cash or deferred payment or other valuable consideration and includes forward contracts but does not include a mortgage, hypothecation, charge or pledge;Explanation I ............Explanation II. - Notwithstanding anything in the Indian Sale of Goods Act, 1930, or any other law for the time being in force, the sale of any goods -(i) which are actually in Uttar Pradesh at the time when in respect thereof, the contract of sale as defined in section 4 of that Act is made,(ii) or which are produced or manufactured in Uttar Pradesh, by the producer or manufacturer thereof, shall wherever the delivery or contract of sale is made, be deemed for the purposes of this Act to have taken place in Uttar Pradesh."3. The High Court, after setting out the facts, held that the assessees were not manufacturers. Desai, C.J., observed :"All that it does to the bristles bought from Kanjars does not amount to manufacturing. It does not result in the production of a commercially different article; what is bought by it from Kanjars is bristles and what it exports for sale is also bristles. It is not possible to say that the assessee manufactures pig bristles out of pig bristles; cleaning and arranging into different groups of different sizes and different colours does not convert them into something essentially or commercially different."4. We agree with the observations of the learned Chief Justice. The learned counsel for the appellant relied on G. R. Kulkarni v. The State ([1957] 8 S.T.C. 294) and Hiralal Jitmal v. Commissioner of Sales Tax ([1957] 8 S.T.C. 325) in support of his submission that the bristles were manufactured goods within the meaning of section 2(h), Explanation II(ii). But, in our opinion, the first case is distinguishable. In that case the High Court of Madhya Pradesh held that the breaking of boulders into metal (gitti) was "manufacture" within the meaning of section 2(i)(a) of the Madhya Pradesh Sales Tax Act, 1947. The High Court observed in that case that "the essence of manufacture is the changing of one object into another for the purposes of making it marketable." The High Court further observed that "the man who manufactures metal is manufacturing a new article which has got a different price and that price includes labour which goes into its manufacture". The facts in the present case are different as no new articles were produced by the assessees; the articles which they produced are known as bristles both in the form in which these are bought from Kanjars and the form in which these are sold at London.In the second case, it was held that "a person who is engaged in the work of printing and dyeing textiles purchased by him and in the business of selling or supplying the printed and dyed material is a manufacturer within the meaning of the definition given in section 2(k) of the Madhya Bharat Sales Tax Act, 1950." There are some observations which do assist the appellant, for the High Court observed :"In common parlance to manufacture goods means to bring goods into being. To manufacture goods for sale would, therefore, mean to bring into being something in a form in which it is capable of being sold or supplied in the course of business. In my opinion, to constitute manufacture for the purposes of the Act, it is not necessary that there must be a transformation in the materials and that the transformation must have progressed so far that the manufactured article becomes commercially known as another and different article from the raw materials. All that is necessary is that the material should have been changed or modified by mans art, or industry so as to make it capable of being sold in an acceptable form to satisfy some want, or desire, or fancy or taste of man."5. In our view, the word "manufacture" has various shades of meaning, and in the context of sales tax legislation, if the goods to which some labour is applied remain essentially the same commercial article, it cannot be said that the final product is the result of manufacture. The decision of the Madhya Pradesh High Court might perhaps be justified on the ground that a printed or dyed cloth is commercially a different article from the cloth which is purchased and printed or dyed. In a recent case, Devi Dass Gopal Krishnan v. The State of Punjab (Civil Appeals Nos. 526, 527 and 529 of 1964; judgment delivered on April 10, 1967; 20 S.T.C. 430), this Court considered the meaning of "manufacture" in section 2(ff) of the Punjab General Sales Tax Act, 1948. Subba Rao, C.J., observed :"On the other hand, the dictionary meaning of manufacture is transform or fashion raw materials into a changed form for use. When oil is produced out of the seeds the process certainly transforms raw material into different article for use. We cannot, therefore, accept this contention.6. Now coming to Civil Appeals Nos. 39 to 43 of 1965, the first additional point raised is that when iron scrap is converted into rolled steel it does not involve the process of manufacture. It is contended that the said conversion does not involve any process of manufacture, but the scrap is made into a better marketable commodity. Before the High Court this contention was not pressed. The apart, it is clear that scrap iron ingots undergo a vital change in the process of manufacture and are converted into a different commodity, viz., rolled steel sections. During the process the scrap iron loses it identity and becomes a new marketable commodity. The process is certainly one of manufacture."
### Response:
0
### Explanation:
5. In our view, the word "manufacture" has various shades of meaning, and in the context of sales tax legislation, if the goods to which some labour is applied remain essentially the same commercial article, it cannot be said that the final product is the result of manufacture. The decision of the Madhya Pradesh High Court might perhaps be justified on the ground that a printed or dyed cloth is commercially a different article from the cloth which is purchased and printed or dyed. In a recent case, Devi Dass Gopal Krishnan v. The State of Punjab (Civil Appeals Nos. 526, 527 and 529 of 1964; judgment delivered on April 10, 1967; 20 S.T.C. 430), this Court considered the meaning of "manufacture" in section 2(ff) of the Punjab General Sales Tax Act, 1948. Subba Rao, C.J., observed :"On the other hand, the dictionary meaning of manufacture is transform or fashion raw materials into a changed form for use. When oil is produced out of the seeds the process certainly transforms raw material into different article for use. We cannot, therefore, accept this contention.6. Now coming to Civil Appeals Nos. 39 to 43 of 1965, the first additional point raised is that when iron scrap is converted into rolled steel it does not involve the process of manufacture. It is contended that the said conversion does not involve any process of manufacture, but the scrap is made into a better marketable commodity. Before the High Court this contention was not pressed. The apart, it is clear that scrap iron ingots undergo a vital change in the process of manufacture and are converted into a different commodity, viz., rolled steel sections. During the process the scrap iron loses it identity and becomes a new marketable commodity. The process is certainly one of manufacture."
|
STATE BANK OF PATIALA Vs. KANWAL NAIN SINGH | KURIAN, J. 1. The appellants are before this Court, aggrieved by the Judgment dated 04.10.2008 passed by the High Court of Punjab and Haryana at Chandigarh in LPA No. 114 of 2007 in Civil Writ Petition No. 17426 of 2004. The case has a chequered history. The respondent joined service in the appellant-Bank on 29.02.1977. The Bank published a Voluntary Retirement Scheme for its employees on 20.01.2001. The Scheme was open for its employees from 15.02.2001 to 01.03.2001. Clause 9 of the Scheme contained a specific provision that the application once made cannot be withdrawn and the same will be treated as irrevocable. 2. On the last date of the operation of the Scheme i.e. on 01.03.2001, the respondent submitted his application seeking voluntary retirement. On the next day, i.e. on 02.03.2001, he sought to withdraw his application for voluntary retirement. His request was denied as per the provisions of Clause 9 of the Scheme and he was retired. 3. The respondent filed a writ petition before the High Court challenging the voluntary retirement. As per an interim order dated 30.03.2001, the respondent was allowed to continue in service and by a common Judgment dated 03.04.2002, the writ petition was allowed. The appellant-Bank challenged the same before this Court. By a Judgment dated 17.12.2002 passed in Civil Appeal Nos. 854-855 of 2002 and other connected matters, reported in (2003) 2 SCC 721 , the Judgment of the High Court was set aside by distinguishing the Scheme that operated in State Bank of India. 4. The appellant-Bank is a subsidiary of the State Bank of India. On 30.01.2003, the Bank filed an application for clarification as to whether the appellant-Bank, being a subsidiary, the benefit of the Judgment would be available to the appellant-Bank as well. That application was allowed on 21.01.2004. 5. In the meanwhile, the respondent was continuing in service on the basis of an interim order passed by the High Court. He was promoted to the Junior Management Grade Scale-I with effect from 01.05.2003. Since the clarification was allowed on 21.01.2004, as per the order reported in (2004) 2 SCC 193 , allowing the appeal filed by the appellant also, the respondent was voluntarily retired with effect from 29.02.2004. 6. After the retirement of the respondent on 29.02.2004, an ex-gratia payment of Rs. 14,05,382/- payable under the Scheme was credited in the account of the respondent on various dates from 31.03.2004 upto 14.05.2004. According to the respondent, neither the same was requested by him/acceptable to him nor was it accepted. 7. The respondent attempted a review of the Judgment dated 21.01.2004 before this Court. The Review Petition was dismissed on 27.04.2004. 8. Thereafter, the respondent filed an application for direction/clarification praying for enhanced ex-gratia, on the basis of length of service actually rendered and scale of pay in the promoted post. According to the learned counsel appearing for the appellant-Bank, the ex-gratia was, in fact, calculated on the basis of the total length of service, till the date of actual retirement under the Scheme i.e. 29.03.2001. That application was withdrawn without prejudice to the liberty to pursue any alternative remedy, if any, available in accordance with law. 9. The respondent quite ingeniously, it appears, thereafter filed a fresh writ petition before the High Court, virtually seeking to resurrect the Judgment which he suffered at the hands of this Court, against which even the review at the instance of the respondent was dismissed. That writ petition was dismissed by the learned Single Judge. However, the Division Bench, in LPA No. 114 of 2007 in Civil Writ Petition No. 17426 of 2004, leading to the impugned Judgment, allowed the same and thus, the instant appeal. 10. Having extensively heard Mr. Sanjay Kapur, learned counsel appearing for the appellant-Bank and Mr. Gagan Gupta, learned counsel appearing for the respondent, we find it difficult to appreciate the stand taken by the High Court. The respondent has suffered a Judgment when this Court allowed the appeal filed by the Bank and dismissed the application filed by the respondent, as per the Judgment reported in (2003) 2 SCC 721 and in (2004) 2 SCC 193. It is a Judgment in personam. The High Court, with great respect, was not correct in its approach in reopening the case of the respondent on the basis of subsequent Judgment of this Court in Food Corporation of India & Ors. Vs. Ramesh Kumar, reported in (2007) 8 SCC 141 in the matter of withdrawal of application for voluntary retirement before the same is accepted. As far as the respondent is concerned, his fate was sealed when this Court declared that he was bound by the provision in the Scheme that the application once made was irrevocable. For all intents and purposes, the respondent is bound by that Judgment for ever. 11. That apart, all that the respondent prayed for in the interlocutory application, which was withdrawn with liberty, was to seek enhanced ex-gratia. It appears that under the cover of the liberty granted at the time of withdrawal to pursue any remedy, if available and in accordance with law, a fresh writ petition was filed, which ultimately led to the impugned Judgment. In that view of the matter, we allow this appeal. The impugned Judgment dated 04.10.2008 in LPA No. 114 of 2008 passed by the High Court is set aside. 12. We find that the ex-gratia payment due to the respondent was credited to his account only in 2004 whereas the whole calculation is as on 30.03.2001. The learned counsel for the Bank submits that the amounts could not have been credited prior to 2004 in view of the interim orders granted by the High Court, permitting the respondent to continue in service. We do not want the parties to venture for another round of litigation on this count. | 1[ds]10. Having extensively heard Mr. Sanjay Kapur, learned counsel appearing for theand Mr. Gagan Gupta, learned counsel appearing for the respondent, we find it difficult to appreciate the stand taken by the High Court. The respondent has suffered a Judgment when this Court allowed the appeal filed by the Bank and dismissed the application filed by the respondent, as per the Judgment reported in (2003) 2 SCC 721 and in (2004) 2 SCC 193. It is a Judgment in personam. The High Court, with great respect, was not correct in its approach in reopening the case of the respondent on the basis of subsequent Judgment of this Court in Food Corporation of India & Ors. Vs. Ramesh Kumar, reported in (2007) 8 SCC 141 in the matter of withdrawal of application for voluntary retirement before the same is accepted. As far as the respondent is concerned, his fate was sealed when this Court declared that he was bound by the provision in the Scheme that the application once made was irrevocable. For all intents and purposes, the respondent is bound by that Judgment for ever.That apart, all that the respondent prayed for in the interlocutory application, which was withdrawn with liberty, was to seek enhancedIt appears that under the cover of the liberty granted at the time of withdrawal to pursue any remedy, if available and in accordance with law, a fresh writ petition was filed, which ultimately led to the impugned Judgment. In that view of the matter, we allow this appeal. The impugned Judgmentin LPA No. 114 of 2008 passed by the High Court is set aside.We find that thepayment due to the respondent was credited to his account only in 2004 whereas the whole calculation is as on 30.03.2001. The learned counsel for the Bank submits that the amounts could not have been credited prior to 2004 in view of the interim orders granted by the High Court, permitting the respondent to continue in service. We do not want the parties to venture for another round of litigation on this count. | 1 | 1,099 | 384 | ### 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:
KURIAN, J. 1. The appellants are before this Court, aggrieved by the Judgment dated 04.10.2008 passed by the High Court of Punjab and Haryana at Chandigarh in LPA No. 114 of 2007 in Civil Writ Petition No. 17426 of 2004. The case has a chequered history. The respondent joined service in the appellant-Bank on 29.02.1977. The Bank published a Voluntary Retirement Scheme for its employees on 20.01.2001. The Scheme was open for its employees from 15.02.2001 to 01.03.2001. Clause 9 of the Scheme contained a specific provision that the application once made cannot be withdrawn and the same will be treated as irrevocable. 2. On the last date of the operation of the Scheme i.e. on 01.03.2001, the respondent submitted his application seeking voluntary retirement. On the next day, i.e. on 02.03.2001, he sought to withdraw his application for voluntary retirement. His request was denied as per the provisions of Clause 9 of the Scheme and he was retired. 3. The respondent filed a writ petition before the High Court challenging the voluntary retirement. As per an interim order dated 30.03.2001, the respondent was allowed to continue in service and by a common Judgment dated 03.04.2002, the writ petition was allowed. The appellant-Bank challenged the same before this Court. By a Judgment dated 17.12.2002 passed in Civil Appeal Nos. 854-855 of 2002 and other connected matters, reported in (2003) 2 SCC 721 , the Judgment of the High Court was set aside by distinguishing the Scheme that operated in State Bank of India. 4. The appellant-Bank is a subsidiary of the State Bank of India. On 30.01.2003, the Bank filed an application for clarification as to whether the appellant-Bank, being a subsidiary, the benefit of the Judgment would be available to the appellant-Bank as well. That application was allowed on 21.01.2004. 5. In the meanwhile, the respondent was continuing in service on the basis of an interim order passed by the High Court. He was promoted to the Junior Management Grade Scale-I with effect from 01.05.2003. Since the clarification was allowed on 21.01.2004, as per the order reported in (2004) 2 SCC 193 , allowing the appeal filed by the appellant also, the respondent was voluntarily retired with effect from 29.02.2004. 6. After the retirement of the respondent on 29.02.2004, an ex-gratia payment of Rs. 14,05,382/- payable under the Scheme was credited in the account of the respondent on various dates from 31.03.2004 upto 14.05.2004. According to the respondent, neither the same was requested by him/acceptable to him nor was it accepted. 7. The respondent attempted a review of the Judgment dated 21.01.2004 before this Court. The Review Petition was dismissed on 27.04.2004. 8. Thereafter, the respondent filed an application for direction/clarification praying for enhanced ex-gratia, on the basis of length of service actually rendered and scale of pay in the promoted post. According to the learned counsel appearing for the appellant-Bank, the ex-gratia was, in fact, calculated on the basis of the total length of service, till the date of actual retirement under the Scheme i.e. 29.03.2001. That application was withdrawn without prejudice to the liberty to pursue any alternative remedy, if any, available in accordance with law. 9. The respondent quite ingeniously, it appears, thereafter filed a fresh writ petition before the High Court, virtually seeking to resurrect the Judgment which he suffered at the hands of this Court, against which even the review at the instance of the respondent was dismissed. That writ petition was dismissed by the learned Single Judge. However, the Division Bench, in LPA No. 114 of 2007 in Civil Writ Petition No. 17426 of 2004, leading to the impugned Judgment, allowed the same and thus, the instant appeal. 10. Having extensively heard Mr. Sanjay Kapur, learned counsel appearing for the appellant-Bank and Mr. Gagan Gupta, learned counsel appearing for the respondent, we find it difficult to appreciate the stand taken by the High Court. The respondent has suffered a Judgment when this Court allowed the appeal filed by the Bank and dismissed the application filed by the respondent, as per the Judgment reported in (2003) 2 SCC 721 and in (2004) 2 SCC 193. It is a Judgment in personam. The High Court, with great respect, was not correct in its approach in reopening the case of the respondent on the basis of subsequent Judgment of this Court in Food Corporation of India & Ors. Vs. Ramesh Kumar, reported in (2007) 8 SCC 141 in the matter of withdrawal of application for voluntary retirement before the same is accepted. As far as the respondent is concerned, his fate was sealed when this Court declared that he was bound by the provision in the Scheme that the application once made was irrevocable. For all intents and purposes, the respondent is bound by that Judgment for ever. 11. That apart, all that the respondent prayed for in the interlocutory application, which was withdrawn with liberty, was to seek enhanced ex-gratia. It appears that under the cover of the liberty granted at the time of withdrawal to pursue any remedy, if available and in accordance with law, a fresh writ petition was filed, which ultimately led to the impugned Judgment. In that view of the matter, we allow this appeal. The impugned Judgment dated 04.10.2008 in LPA No. 114 of 2008 passed by the High Court is set aside. 12. We find that the ex-gratia payment due to the respondent was credited to his account only in 2004 whereas the whole calculation is as on 30.03.2001. The learned counsel for the Bank submits that the amounts could not have been credited prior to 2004 in view of the interim orders granted by the High Court, permitting the respondent to continue in service. We do not want the parties to venture for another round of litigation on this count.
### Response:
1
### Explanation:
10. Having extensively heard Mr. Sanjay Kapur, learned counsel appearing for theand Mr. Gagan Gupta, learned counsel appearing for the respondent, we find it difficult to appreciate the stand taken by the High Court. The respondent has suffered a Judgment when this Court allowed the appeal filed by the Bank and dismissed the application filed by the respondent, as per the Judgment reported in (2003) 2 SCC 721 and in (2004) 2 SCC 193. It is a Judgment in personam. The High Court, with great respect, was not correct in its approach in reopening the case of the respondent on the basis of subsequent Judgment of this Court in Food Corporation of India & Ors. Vs. Ramesh Kumar, reported in (2007) 8 SCC 141 in the matter of withdrawal of application for voluntary retirement before the same is accepted. As far as the respondent is concerned, his fate was sealed when this Court declared that he was bound by the provision in the Scheme that the application once made was irrevocable. For all intents and purposes, the respondent is bound by that Judgment for ever.That apart, all that the respondent prayed for in the interlocutory application, which was withdrawn with liberty, was to seek enhancedIt appears that under the cover of the liberty granted at the time of withdrawal to pursue any remedy, if available and in accordance with law, a fresh writ petition was filed, which ultimately led to the impugned Judgment. In that view of the matter, we allow this appeal. The impugned Judgmentin LPA No. 114 of 2008 passed by the High Court is set aside.We find that thepayment due to the respondent was credited to his account only in 2004 whereas the whole calculation is as on 30.03.2001. The learned counsel for the Bank submits that the amounts could not have been credited prior to 2004 in view of the interim orders granted by the High Court, permitting the respondent to continue in service. We do not want the parties to venture for another round of litigation on this count.
|
U.P. State Sugar Corporation Ltd. Vs. Sant Raj Singh | work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. Inequality of the men in different groups excludes applicability of the principle of equal pay for equal work to them." 21. In Government of W.B. v. Tarun K. Roy [(2004) 1 SCC 347] , it was clearly laid down that the holders of a higher qualification can be treated to be a separate class, holding: "20. Question of violation of Article 14 of the Constitution of India on the part of the State would arise only if the persons are similarly placed. Equality clause contained in Article 14, in other words, will have no application where the persons are not similarly situated or when there is a valid classification based on a reasonable differentia." 22. The said decision has been noticed by another Bench of this Court in M.P. Rural Agriculture Extension Officers Association v. State of M.P. and Another [(2004) 4 SCC 646] stating: "22. Furthermore, as noticed hereinbefore, a valid classification based on educational qualification for the purpose of grant of pay has been upheld by the Constitution Bench of this Court in P. Narasinga Rao." 23. The First Respondent admittedly did not possess the requisite qualification. He merely claimed a higher scale of pay only because Shri B.P. Srivastava and Shri Shyam Sunder Shukla had been paid. It has not been disputed before us that the case of Shri Srivastava stood on different footing and his scale of pay had to be protected in terms of Section 16 of the Act. So far as Shri Shyam Sunder Shukla is concerned, we may proceed on the basis that the Corporation took a wrong decision. The said decision, however, was not questioned by the First Respondent before the High Court. No foundational facts had been placed before the High Court in relation thereto. We would not like to enter into the controversy as to whether his case could have been considered by the Committee or on what basis the Committee considered the cases of seven candidates and granted higher scales of pay to four candidates as the validity thereof is not in question. Assuming that the Corporation was wrong, the same by itself would not clothe the First Respondent even legal right to claim a higher scale of pay. On what basis the Selection Committee selected four employees out of the seven is not known. Three persons admittedly were not selected. If the plea put forward by the Respondent is accepted, these employees also would be entitled to the same scale of pay as given to the said Shri Shukla, although they have been found to be not fit therefor. Educational qualification was made the basis for a valid classification in the matter of payment of salary in a particular scale of pay by the Wage Board itself. Only in the year 1989, such a classification was obliterated. The First Respondent had been granted the benefit of the recommendations of the Third Wage Board also. It was a matter of policy decision for the Corporation to consider as to whether a particular category of employees should be taken outside the purview of the pay scales recommended by the Wage Board and place them in a higher scale of pay. We, therefore, cannot accept the contention of Shri Dwivedi that only because no such qualification was prescribed at the time of recruitment, the classification made on that basis would be bad in law. Even otherwise the said contention is not correct as scale of pay was determined by the award of the Wage Board. 24. Yet again the validity or otherwise of the said policy decision is not in question. The said policy decision has been taken as far back in 1984. It cannot be assumed that the First Respondent was not aware of the same. 25. Despite knowledge, he did not question the validity of such a policy decision. The matter relating to grant of scale of pay may be based upon a policy decision of the State. 26. In State of Orissa and Others v. Balaram Sahu and Others [(2003) 1 SCC 250] , this Court opined: " Though "equal pay for equal work" is considered to be a concomitant of Article 14 as much as "equal pay for unequal work" will also be a negation of that right, equal pay would depend upon not only the nature or the volume of work, but also on the qualitative difference as regards reliability and responsibility as well and though the functions may be the same, but the responsibilities do make a real and substantial difference." 27. Yet again in Union of India and Another v. International Trading Co. and Another [(2003) 5 SCC 437] , this Court opined: " A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short "the Constitution") cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case " 28. Moreover, Article 14 has a positive concept. Nobody can claim equality in illegality. 29. For the foregoing reasons, we are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly. If any amount has been paid to the First Respondent, pursuant to or in furtherance of the judgment of the High Court, the same may be recovered from his salary in twelve equal monthly instalments. 30. | 1[ds]The doctrine of equal pay for equal work, as adumbrated under Article 39(d) of the Constitution of India read with Article 14 thereof, cannot be applied in a vacuum. The constitutional scheme postulates equal pay for equal work for those who are equally placed in all respects. Possession of a higher qualification has all along been treated by this Court to be a valid basis for classification of two categories ofFirst Respondent admittedly did not possess the requisite qualification. He merely claimed a higher scale of pay only because Shri B.P. Srivastava and Shri Shyam Sunder Shukla had been paid. It has not been disputed before us that the case of Shri Srivastava stood on different footing and his scale of pay had to be protected in terms of Section 16 of the Act. So far as Shri Shyam Sunder Shukla is concerned, we may proceed on the basis that the Corporation took a wrong decision. The said decision, however, was not questioned by the First Respondent before the High Court. No foundational facts had been placed before the High Court in relation thereto. We would not like to enter into the controversy as to whether his case could have been considered by the Committee or on what basis the Committee considered the cases of seven candidates and granted higher scales of pay to four candidates as the validity thereof is not in question. Assuming that the Corporation was wrong, the same by itself would not clothe the First Respondent even legal right to claim a higher scale of pay. On what basis the Selection Committee selected four employees out of the seven is not known. Three persons admittedly were not selected. If the plea put forward by the Respondent is accepted, these employees also would be entitled to the same scale of pay as given to the said Shri Shukla, although they have been found to be not fit therefor. Educational qualification was made the basis for a valid classification in the matter of payment of salary in a particular scale of pay by the Wage Board itself. Only in the year 1989, such a classification was obliterated. The First Respondent had been granted the benefit of the recommendations of the Third Wage Board also. It was a matter of policy decision for the Corporation to consider as to whether a particular category of employees should be taken outside the purview of the pay scales recommended by the Wage Board and place them in a higher scale of pay. We, therefore, cannot accept the contention of Shri Dwivedi that only because no such qualification was prescribed at the time of recruitment, the classification made on that basis would be bad in law. Even otherwise the said contention is not correct as scale of pay was determined by the award of the Wageagain the validity or otherwise of the said policy decision is not in question. The said policy decision has been taken as far back in 1984. It cannot be assumed that the First Respondent was not aware of theknowledge, he did not question the validity of such a policy decision. The matter relating to grant of scale of pay may be based upon a policy decision of the State.Moreover, Article 14 has a positive concept. Nobody can claim equality inare of the opinion that the impugned judgment cannot be sustained which is set aside accordingly. If any amount has been paid to the First Respondent, pursuant to or in furtherance of the judgment of the High Court, the same may be recovered from his salary in twelve equal monthly instalments. | 1 | 3,677 | 654 | ### 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:
work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. Inequality of the men in different groups excludes applicability of the principle of equal pay for equal work to them." 21. In Government of W.B. v. Tarun K. Roy [(2004) 1 SCC 347] , it was clearly laid down that the holders of a higher qualification can be treated to be a separate class, holding: "20. Question of violation of Article 14 of the Constitution of India on the part of the State would arise only if the persons are similarly placed. Equality clause contained in Article 14, in other words, will have no application where the persons are not similarly situated or when there is a valid classification based on a reasonable differentia." 22. The said decision has been noticed by another Bench of this Court in M.P. Rural Agriculture Extension Officers Association v. State of M.P. and Another [(2004) 4 SCC 646] stating: "22. Furthermore, as noticed hereinbefore, a valid classification based on educational qualification for the purpose of grant of pay has been upheld by the Constitution Bench of this Court in P. Narasinga Rao." 23. The First Respondent admittedly did not possess the requisite qualification. He merely claimed a higher scale of pay only because Shri B.P. Srivastava and Shri Shyam Sunder Shukla had been paid. It has not been disputed before us that the case of Shri Srivastava stood on different footing and his scale of pay had to be protected in terms of Section 16 of the Act. So far as Shri Shyam Sunder Shukla is concerned, we may proceed on the basis that the Corporation took a wrong decision. The said decision, however, was not questioned by the First Respondent before the High Court. No foundational facts had been placed before the High Court in relation thereto. We would not like to enter into the controversy as to whether his case could have been considered by the Committee or on what basis the Committee considered the cases of seven candidates and granted higher scales of pay to four candidates as the validity thereof is not in question. Assuming that the Corporation was wrong, the same by itself would not clothe the First Respondent even legal right to claim a higher scale of pay. On what basis the Selection Committee selected four employees out of the seven is not known. Three persons admittedly were not selected. If the plea put forward by the Respondent is accepted, these employees also would be entitled to the same scale of pay as given to the said Shri Shukla, although they have been found to be not fit therefor. Educational qualification was made the basis for a valid classification in the matter of payment of salary in a particular scale of pay by the Wage Board itself. Only in the year 1989, such a classification was obliterated. The First Respondent had been granted the benefit of the recommendations of the Third Wage Board also. It was a matter of policy decision for the Corporation to consider as to whether a particular category of employees should be taken outside the purview of the pay scales recommended by the Wage Board and place them in a higher scale of pay. We, therefore, cannot accept the contention of Shri Dwivedi that only because no such qualification was prescribed at the time of recruitment, the classification made on that basis would be bad in law. Even otherwise the said contention is not correct as scale of pay was determined by the award of the Wage Board. 24. Yet again the validity or otherwise of the said policy decision is not in question. The said policy decision has been taken as far back in 1984. It cannot be assumed that the First Respondent was not aware of the same. 25. Despite knowledge, he did not question the validity of such a policy decision. The matter relating to grant of scale of pay may be based upon a policy decision of the State. 26. In State of Orissa and Others v. Balaram Sahu and Others [(2003) 1 SCC 250] , this Court opined: " Though "equal pay for equal work" is considered to be a concomitant of Article 14 as much as "equal pay for unequal work" will also be a negation of that right, equal pay would depend upon not only the nature or the volume of work, but also on the qualitative difference as regards reliability and responsibility as well and though the functions may be the same, but the responsibilities do make a real and substantial difference." 27. Yet again in Union of India and Another v. International Trading Co. and Another [(2003) 5 SCC 437] , this Court opined: " A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short "the Constitution") cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case " 28. Moreover, Article 14 has a positive concept. Nobody can claim equality in illegality. 29. For the foregoing reasons, we are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly. If any amount has been paid to the First Respondent, pursuant to or in furtherance of the judgment of the High Court, the same may be recovered from his salary in twelve equal monthly instalments. 30.
### Response:
1
### Explanation:
The doctrine of equal pay for equal work, as adumbrated under Article 39(d) of the Constitution of India read with Article 14 thereof, cannot be applied in a vacuum. The constitutional scheme postulates equal pay for equal work for those who are equally placed in all respects. Possession of a higher qualification has all along been treated by this Court to be a valid basis for classification of two categories ofFirst Respondent admittedly did not possess the requisite qualification. He merely claimed a higher scale of pay only because Shri B.P. Srivastava and Shri Shyam Sunder Shukla had been paid. It has not been disputed before us that the case of Shri Srivastava stood on different footing and his scale of pay had to be protected in terms of Section 16 of the Act. So far as Shri Shyam Sunder Shukla is concerned, we may proceed on the basis that the Corporation took a wrong decision. The said decision, however, was not questioned by the First Respondent before the High Court. No foundational facts had been placed before the High Court in relation thereto. We would not like to enter into the controversy as to whether his case could have been considered by the Committee or on what basis the Committee considered the cases of seven candidates and granted higher scales of pay to four candidates as the validity thereof is not in question. Assuming that the Corporation was wrong, the same by itself would not clothe the First Respondent even legal right to claim a higher scale of pay. On what basis the Selection Committee selected four employees out of the seven is not known. Three persons admittedly were not selected. If the plea put forward by the Respondent is accepted, these employees also would be entitled to the same scale of pay as given to the said Shri Shukla, although they have been found to be not fit therefor. Educational qualification was made the basis for a valid classification in the matter of payment of salary in a particular scale of pay by the Wage Board itself. Only in the year 1989, such a classification was obliterated. The First Respondent had been granted the benefit of the recommendations of the Third Wage Board also. It was a matter of policy decision for the Corporation to consider as to whether a particular category of employees should be taken outside the purview of the pay scales recommended by the Wage Board and place them in a higher scale of pay. We, therefore, cannot accept the contention of Shri Dwivedi that only because no such qualification was prescribed at the time of recruitment, the classification made on that basis would be bad in law. Even otherwise the said contention is not correct as scale of pay was determined by the award of the Wageagain the validity or otherwise of the said policy decision is not in question. The said policy decision has been taken as far back in 1984. It cannot be assumed that the First Respondent was not aware of theknowledge, he did not question the validity of such a policy decision. The matter relating to grant of scale of pay may be based upon a policy decision of the State.Moreover, Article 14 has a positive concept. Nobody can claim equality inare of the opinion that the impugned judgment cannot be sustained which is set aside accordingly. If any amount has been paid to the First Respondent, pursuant to or in furtherance of the judgment of the High Court, the same may be recovered from his salary in twelve equal monthly instalments.
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State Of Rajasthan Vs. Raghuveer Singh & Ors | recovered may, if it shall think fit, allow interest to the creditor at a rate not exceeding the current rate of interest from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time; or if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the term of payments provided that interest shall be payable in all cases in which it is now payable by law. The claim of the present plaintiff was not for the payment of any unliquidated damages or for the payment of any amount arising out of an inchoate or contingent obligation. It was for the payment of a sum which was ascertainable on a calculation made in accordance with the terms of the agreement. It was clearly a sum certain within the meaning of the Interest Act. In any case it would be a debt, i.e. a sum of money which is now payable or will become payable in the future by reason of a present obligation. The further question for consideration is whether the plaintiff had made a demand of payment, so as such demand shall give notice that interest will be claimed from the date of such demand until the term of payment. The plaintiff issued two notices to the defendant demanding payment. The first was on 21st December, 1950, and the second was on 5th April, 1953. There is no. dispute that in the second notice of demand of payment a definite claim for interest had been made. In the first notice it was said by withholding payment of his bills absolutely, the Government has put my client to enormous loss by way of interest also........ I intimate to you through this notice that the said Shri Ramsingh claims a sum of Rs. 2, 50, 519 from the Rajasthan State as under :1.Unpaid bills for work doneRs. 1, 37, 177/-/-2.Interest on the above.Rs. 11, 511/-/-3.....................4.....................5.....................6.....................Total : Rs. 2, 50, 519/-/-The learned counsel submitted that what was claimed by the plaintiff in this notice was damages and not interest and that too for the past, without any indication that future interest was also being claimed. It is true that the plaintiff mentioned loss by way of interest, suggesting that what he was claiming was compensation for the damage suffered by him. We are, however, not prepared to construe the notice so literally or technically. The mention of loss was only explanatory. The plaintiff was, without any manner of doubt claiming interest as such. Nor are we impressed with the argument that there was no. claim for future interest. In our opinion a claim for past interest would necessarily imply a claim for future interest, vide Kuppusami Pillai v. Madras Electric Tramway Co. Ltd. )1900) ILR 23 Mad 41), and Sita Ram v. Mrs. S. Sullivan )1901) 2 Pun LR 464).5. In Mahabir Prashad Rungta v. Durga Datt (AIR 1961 SC 990 ) interest was disallowed on the ground that the notice which was given did not specify the sum which was demanded and therefore, the Interest Act did not apply. On the question whether interest could be awarded on grounds of equity it was held that what was claimed by Durga Datt was interest as damages and that it could not, therefore, be awarded. The suit itself was one for damages for breach of contract. We do not think that this case is of any assistance to the appellant. In Union of India v. A. L. Rallia Ram (AIR 1963 SC 1685 ) the Arbitrator had awarded interest by way of compensation since the party had to borrow a large amount of money from its banker to meet its obligation under the contract. The Supreme Court pointed out that interest could not be awarded by way of damages. The Supreme Court also noticed that an Arbitrator was not a Court within the meaning of the Interest Act. No. question arose before the Supreme Court whether interest could not be awarded under the Interest Act merely because the notice demanding payment mentioned that the plaintiff had suffered loss of interest also. In our view the condition prescribed by the Interest Act that such demand shall give notice to the debtor that interest shall be claimed is fulfilled if interest is claimed, notwithstanding the fact that the notice of demand explains that loss by way of interest has been suffered. To take any other view would be to over-technical in the construction of pleadings, including notices preceding the action.6. We must notice here an argument advanced by the learned counsel for the appellant that the contract prohibited the award of interest. He relied upon the following sentence occurring in paragraph 16 of the Contract dated 11th May, 1947. Neither the earnest money deposit nor the withheld amount shall bear any interest. This sentence far from supporting the case of the appellant appears to support the case of the plaintiff. The reference to "the withheld amounts" is to the amounts representing five per cent of the running bills which are required to be withheld at the time of payment of the running bills. The provision that the contractor is not entitled to interest on these withheld amounts appears to imply that interest is claimable on other amounts due to the contractor.7. While awarding interest pendente lite the trial Court adopted the rate of 41/2% but the trial Court gave no. reasons for so doing. The High Court considered the matter in some detail and having regard to the various continuous defaults committed by the defendant and its Officers, the High Court enhanced the rate of interest to 6%. The High Court was justified in doing so and we see no reason to interfere with the discretion exercised by the High Court.8. | 0[ds]In regard to conveyance and lift charges the High Court pointed out that no. question was raised in the Memorandum of grounds of appeal and there was, therefore, no. justification for permitting the learned counsel for the State to assail the finding of the trial Court relating to those charges. We do not see any reason either why the learned counsel should be permitted to agitate this question in this appeal. Regarding double-charge for bond-stone, lintels and sills, the complaint of the appellant was that while separate payment was being made for them, they had also been included in the measurements of the walls in which they happened to be fixed. From the office circular issued by the Chief Engineer of the Public Works Department of the United State of Rajasthan on 12th July, 1948, it appears that it was the practice up till then to allow payment for bond-stones, lintels and sills separately without deducting their cubic contents from the general wall masonry. This had always been the practice and this was never objected to by the Accountant General. In view of the practice obtaining till then it could not be said that the contractor had wrongfully claimed double payment for bond-stones, lintels and sills. The use of Jodhpur slabs was not questioned in the written statement. All that was said was that the rate was high but at the trial there was no. evidence worth the name, as observed by the High Court to show that the charge was excessive. Again there was no. objection to the use of C. P. Teak Wood instead of Burma Teak Wood as the latter was not available. According to the letter of the Superintending Engineer dated 6th February, 1950, where Burma teak wood was not available and C. P. teak wood was used, the rate specified for Burma teak wood should be taken for C. P. teak wood. It could not, therefore, be said that the contractor had charged more than what he should have for C. P. teak wood.We are unable to agree with the submission of the learned counsel for the appellant. Under the Interest Act, 1839, upon all debts or sums certain payable at a certain time or otherwise, the Court before which such debts or sums may be recovered may, if it shall think fit, allow interest to the creditor at a rate not exceeding the current rate of interest from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time; or if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the term of payments provided that interest shall be payable in all cases in which it is now payable by law. The claim of the present plaintiff was not for the payment of any unliquidated damages or for the payment of any amount arising out of an inchoate or contingent obligation. It was for the payment of a sum which was ascertainable on a calculation made in accordance with the terms of the agreement. It was clearly a sum certain within the meaning of the Interest Act. In any case it would be a debt, i.e. a sum of money which is now payable or will become payable in the future by reason of a presentis true that the plaintiff mentioned loss by way of interest, suggesting that what he was claiming was compensation for the damage suffered by him. We are, however, not prepared to construe the notice so literally or technically. The mention of loss was only explanatory. The plaintiff was, without any manner of doubt claiming interest as such. Nor are we impressed with the argument that there was no. claim for future interest. In our opinion a claim for past interest would necessarily imply a claim for futureour view the condition prescribed by the Interest Act that such demand shall give notice to the debtor that interest shall be claimed is fulfilled if interest is claimed, notwithstanding the fact that the notice of demand explains that loss by way of interest has been suffered. To take any other view would be to over-technical in the construction of pleadings, including notices preceding thesentence far from supporting the case of the appellant appears to support the case of the plaintiff. The reference to "the withheld amounts" is to the amounts representing five per cent of the running bills which are required to be withheld at the time of payment of the running bills. The provision that the contractor is not entitled to interest on these withheld amounts appears to imply that interest is claimable on other amounts due to the contractor.7. While awarding interest pendente lite the trial Court adopted the rate of 41/2% but the trial Court gave no. reasons for so doing. The High Court considered the matter in some detail and having regard to the various continuous defaults committed by the defendant and its Officers, the High Court enhanced the rate of interest to 6%. The High Court was justified in doing so and we see no reason to interfere with the discretion exercised by the High Court. | 0 | 2,140 | 968 | ### 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:
recovered may, if it shall think fit, allow interest to the creditor at a rate not exceeding the current rate of interest from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time; or if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the term of payments provided that interest shall be payable in all cases in which it is now payable by law. The claim of the present plaintiff was not for the payment of any unliquidated damages or for the payment of any amount arising out of an inchoate or contingent obligation. It was for the payment of a sum which was ascertainable on a calculation made in accordance with the terms of the agreement. It was clearly a sum certain within the meaning of the Interest Act. In any case it would be a debt, i.e. a sum of money which is now payable or will become payable in the future by reason of a present obligation. The further question for consideration is whether the plaintiff had made a demand of payment, so as such demand shall give notice that interest will be claimed from the date of such demand until the term of payment. The plaintiff issued two notices to the defendant demanding payment. The first was on 21st December, 1950, and the second was on 5th April, 1953. There is no. dispute that in the second notice of demand of payment a definite claim for interest had been made. In the first notice it was said by withholding payment of his bills absolutely, the Government has put my client to enormous loss by way of interest also........ I intimate to you through this notice that the said Shri Ramsingh claims a sum of Rs. 2, 50, 519 from the Rajasthan State as under :1.Unpaid bills for work doneRs. 1, 37, 177/-/-2.Interest on the above.Rs. 11, 511/-/-3.....................4.....................5.....................6.....................Total : Rs. 2, 50, 519/-/-The learned counsel submitted that what was claimed by the plaintiff in this notice was damages and not interest and that too for the past, without any indication that future interest was also being claimed. It is true that the plaintiff mentioned loss by way of interest, suggesting that what he was claiming was compensation for the damage suffered by him. We are, however, not prepared to construe the notice so literally or technically. The mention of loss was only explanatory. The plaintiff was, without any manner of doubt claiming interest as such. Nor are we impressed with the argument that there was no. claim for future interest. In our opinion a claim for past interest would necessarily imply a claim for future interest, vide Kuppusami Pillai v. Madras Electric Tramway Co. Ltd. )1900) ILR 23 Mad 41), and Sita Ram v. Mrs. S. Sullivan )1901) 2 Pun LR 464).5. In Mahabir Prashad Rungta v. Durga Datt (AIR 1961 SC 990 ) interest was disallowed on the ground that the notice which was given did not specify the sum which was demanded and therefore, the Interest Act did not apply. On the question whether interest could be awarded on grounds of equity it was held that what was claimed by Durga Datt was interest as damages and that it could not, therefore, be awarded. The suit itself was one for damages for breach of contract. We do not think that this case is of any assistance to the appellant. In Union of India v. A. L. Rallia Ram (AIR 1963 SC 1685 ) the Arbitrator had awarded interest by way of compensation since the party had to borrow a large amount of money from its banker to meet its obligation under the contract. The Supreme Court pointed out that interest could not be awarded by way of damages. The Supreme Court also noticed that an Arbitrator was not a Court within the meaning of the Interest Act. No. question arose before the Supreme Court whether interest could not be awarded under the Interest Act merely because the notice demanding payment mentioned that the plaintiff had suffered loss of interest also. In our view the condition prescribed by the Interest Act that such demand shall give notice to the debtor that interest shall be claimed is fulfilled if interest is claimed, notwithstanding the fact that the notice of demand explains that loss by way of interest has been suffered. To take any other view would be to over-technical in the construction of pleadings, including notices preceding the action.6. We must notice here an argument advanced by the learned counsel for the appellant that the contract prohibited the award of interest. He relied upon the following sentence occurring in paragraph 16 of the Contract dated 11th May, 1947. Neither the earnest money deposit nor the withheld amount shall bear any interest. This sentence far from supporting the case of the appellant appears to support the case of the plaintiff. The reference to "the withheld amounts" is to the amounts representing five per cent of the running bills which are required to be withheld at the time of payment of the running bills. The provision that the contractor is not entitled to interest on these withheld amounts appears to imply that interest is claimable on other amounts due to the contractor.7. While awarding interest pendente lite the trial Court adopted the rate of 41/2% but the trial Court gave no. reasons for so doing. The High Court considered the matter in some detail and having regard to the various continuous defaults committed by the defendant and its Officers, the High Court enhanced the rate of interest to 6%. The High Court was justified in doing so and we see no reason to interfere with the discretion exercised by the High Court.8.
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### Explanation:
In regard to conveyance and lift charges the High Court pointed out that no. question was raised in the Memorandum of grounds of appeal and there was, therefore, no. justification for permitting the learned counsel for the State to assail the finding of the trial Court relating to those charges. We do not see any reason either why the learned counsel should be permitted to agitate this question in this appeal. Regarding double-charge for bond-stone, lintels and sills, the complaint of the appellant was that while separate payment was being made for them, they had also been included in the measurements of the walls in which they happened to be fixed. From the office circular issued by the Chief Engineer of the Public Works Department of the United State of Rajasthan on 12th July, 1948, it appears that it was the practice up till then to allow payment for bond-stones, lintels and sills separately without deducting their cubic contents from the general wall masonry. This had always been the practice and this was never objected to by the Accountant General. In view of the practice obtaining till then it could not be said that the contractor had wrongfully claimed double payment for bond-stones, lintels and sills. The use of Jodhpur slabs was not questioned in the written statement. All that was said was that the rate was high but at the trial there was no. evidence worth the name, as observed by the High Court to show that the charge was excessive. Again there was no. objection to the use of C. P. Teak Wood instead of Burma Teak Wood as the latter was not available. According to the letter of the Superintending Engineer dated 6th February, 1950, where Burma teak wood was not available and C. P. teak wood was used, the rate specified for Burma teak wood should be taken for C. P. teak wood. It could not, therefore, be said that the contractor had charged more than what he should have for C. P. teak wood.We are unable to agree with the submission of the learned counsel for the appellant. Under the Interest Act, 1839, upon all debts or sums certain payable at a certain time or otherwise, the Court before which such debts or sums may be recovered may, if it shall think fit, allow interest to the creditor at a rate not exceeding the current rate of interest from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time; or if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the term of payments provided that interest shall be payable in all cases in which it is now payable by law. The claim of the present plaintiff was not for the payment of any unliquidated damages or for the payment of any amount arising out of an inchoate or contingent obligation. It was for the payment of a sum which was ascertainable on a calculation made in accordance with the terms of the agreement. It was clearly a sum certain within the meaning of the Interest Act. In any case it would be a debt, i.e. a sum of money which is now payable or will become payable in the future by reason of a presentis true that the plaintiff mentioned loss by way of interest, suggesting that what he was claiming was compensation for the damage suffered by him. We are, however, not prepared to construe the notice so literally or technically. The mention of loss was only explanatory. The plaintiff was, without any manner of doubt claiming interest as such. Nor are we impressed with the argument that there was no. claim for future interest. In our opinion a claim for past interest would necessarily imply a claim for futureour view the condition prescribed by the Interest Act that such demand shall give notice to the debtor that interest shall be claimed is fulfilled if interest is claimed, notwithstanding the fact that the notice of demand explains that loss by way of interest has been suffered. To take any other view would be to over-technical in the construction of pleadings, including notices preceding thesentence far from supporting the case of the appellant appears to support the case of the plaintiff. The reference to "the withheld amounts" is to the amounts representing five per cent of the running bills which are required to be withheld at the time of payment of the running bills. The provision that the contractor is not entitled to interest on these withheld amounts appears to imply that interest is claimable on other amounts due to the contractor.7. While awarding interest pendente lite the trial Court adopted the rate of 41/2% but the trial Court gave no. reasons for so doing. The High Court considered the matter in some detail and having regard to the various continuous defaults committed by the defendant and its Officers, the High Court enhanced the rate of interest to 6%. The High Court was justified in doing so and we see no reason to interfere with the discretion exercised by the High Court.
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Ram Prasad Dagduram Vs. Vijay Kumar Motilal Mirakhanwala & Ors | names of Tarabais daughters. This is also not a case where a wrong defendant has been sued as representing the estate of a deceased person and subsequently the real representative is added as a defendant. Nor is this a case where a wrong plaintiff has sued in a representative capacity and the person whom he intended to represent was subsequently added as a plaintiff. This is a case where the original plaintiff sued in his own right and on his own behalf. No doubt Vijay Kumar claimed the right to enforce the mortgage .as the legal representative of Tarabai. But he made this claim on his own behalf and not as representing the daughters of Tarabai. Mahabalkumari must be regarded as a new plaintiff and Rajkumari and Premkumari must be regarded as new defendants and by reason of S. 22 (1) the suit must as regards them be deemed to have been instituted when they were made parties. 16. In Meyappa Chetty v. Supramanian Chetty, 43 Ind App 113: (AIR 1916 PC 202), the Privy Council had occasion to consider the similar provisions of S. 22 of the Straits Settlement Ordinance No. 6 of 1896 which read :"When, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall as regards him be deemed to have been instituted when he was so made a party ............. Construing this section, Lord Parker of Waddington observed :"Their lordships are of opinion that S. 22 contemplates cases in which a suit is defective by reason of the person or one of the persons in whom the right of suit is vested not being before the Court. Section 133 of the Civil Procedure Code provides against the defence of a suit on this around and enables the proper party to be added or substituted. If A is the right person to sue, it would be clearly wrong to allow him, for the sake of avoiding the Limitation Ordinance, to take advantage of a suit improperly instituted by B." 17. Similarly, in this case the daughters of Tarabai cannot, for the purpose of avoiding the Limitation Act, take advantage of the suit improperly instituted by Vijay Kumar. 18. In Subodini Debi v. Cumar Ganoda Kant Roy Bahadur, (1887) ILR 14 Cal 400, the Calcutta High Court held that there was a difference between substituting a new person as plaintiff under S. 27 of the Code of Civil Procedure, 1882 and the addition of a new person as defendant under S. 32 of the Code and that the change of parties as plaintiffs did not affect the question of limitation.. This decision was followed by Parsons, J. in (1898) ILR 22 Bom 672 at p. 679. But the learned Judges deciding those cases did not refer to S. 22 of the Indian Limitation Act, 1877 and they appear to have completely overlooked that section.Section 22 makes no distinction between sub-r . (1) and sub-r. (2) of O. 1, R. 10. The section in express terms applies whenever a new plaintiff or a new defendant is substituted after the institution of a suit. 19. The Court has power to add a new plaintiff at any stage of the suit, and in the absence of a statutory provision like S. 22 the suit would be regarded as having been commenced by the new plaintiff at the time when it was first instituted. But the policy of S. 22 is to prevent this result, and the effect of the section is that the suit must be regarded as having been instituted by the new plaintiff when he is made a party, see Ramsubuk v. Ramlall Koondoo, (1881) ILR 6 Cal 815.The rigour of this law has been mitigated by the proviso to .S. 21(1) of the Indian Limitation Act, 1963, which enables the Court on being, satisfied that the omission to, include a new plaintiff or a new defendant was due to a mistake made in good faith, to direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. Unfortunately, the proviso to S. 21 (1) of the Indian Limitation Act, 1963 has no application to this case, and we have no power to direct that the suit should be deemed to have been instituted on a date earlier than November 4, 1958. 20. It follows that as regards Mahabalkumari, Rajkumari and Premkumari the suit must be regarded as instituted on November 4, 1958. As far as they are concerned, the suit is barred by limitation and no decree can be passed in their favour. The decree passed by the High Court in their favour cannot be sustained and must be set aside. 21. We think that the High Court had power to join Mahabalkumari as a party plaintiff under O. 1, R. 10 of the Code of Civil Procedure and to join Rajkumari and Premkumari as defendants under O. 1, R. 10 (2) and to allow consequential amendments of the plaint under O. 6, R. 17. But having regard to the bar of limitation, the added parties are not entitled to obtain any relief. 22. So far as Vijay Kumar is concerned, the suit as brought by him was dismissed by the High Court. There is no appeal by him. On his behalf, it was not contended that we should exercise in his favour our powers under 0. 41, R. 33 of the Code of Civil Procedure, or that we should set aside the decree of dismissal of the suit against him and remand the case to the High Court for decision of the question whether he is the adopted son and heir of Tarabai. Even if such prayer were made, on the facts of this case we would not be inclined to exercise our powers under 0. 41, R. 33 and to set aside the decree of the High Court as to the dismissal of the suit against him. | 1[ds]12. The mortgage deed, dated December 13, 1934 provided that the mortgage money would be payable in annual instalments within a period of nine Fasli years, and in the event of non-payment of five instalments, the mortgagee would be entitled to recover the entire mortgage money. The appellant did not pay any of the instalments. The High Court rightly held that the deed gave the mortgagee an option to enforce the mortgage in the event of nonpayment of five instalments. It was open to the mortgagee not to exercise this option. As the mortgagee did not exercise the option, the mortgage money fell due on the expiry of nine years, that is to say, on February 9, l943,and limitation commenced to run from this date13. On December 13, 1934 when the mortgage was executed and on February 9, 1943 when the mortgage money fell due, the Hyderabad Limitation Act was in force. By Art. 133 of the Hyderabad Limitation Act, the period of limitation for a suit by a mortgagee for foreclosure was thirty years from the date when the money secured by the mortgage became due. But as from April 1, 1951, the Hyderabad Limitation Act was repealed and the Indian Limitation Act, 1908 was extended to the State of Hyderabad by the Part B States (Laws) Act (Act III of 1951), prima facie, the Indian Limitation Act, 1908 which was in force on the date of the institution of the suit was the law of limitation applicable to the suit. On behalf of the respondents, it was argued that by reason of the proviso to S.6 of the Part B States (Laws) Act, 1951, Art. 133 of the Hyderabad Limitation Act continued to apply to the suit. There is no substance in this contention. The respondents had no vested right in the law of procedure for enforcement of the mortgage. They did not acquire under Art. 133 of the Hyderabad Limitation Act any right or privilege as contemplated by the proviso to S. 6 of the Part B States (Laws) Act, 1951. No doubt, Art. 132 of the Indian Limitation Act, 1908 abridged the period of limitation for the enforcement of the mortgage. But this abridgment did not impair or take away any vested right. Section 30 of the Indian Limitation Act, 1908 inserted by the Part B States (Laws) Act, 1951 made suitable provision safeguarding vested rights in cases where the period prescribed was shorter than that prescribed by the corresponding law previously in force in the Part B State15. Admittedly, the name of the original plaintiff is not a misdescription of the names of Tarabais daughters. This is also not a case where a wrong defendant has been sued as representing the estate of a deceased person and subsequently the real representative is added as a defendant. Nor is this a case where a wrong plaintiff has sued in a representative capacity and the person whom he intended to represent was subsequently added as a plaintiff. This is a case where the original plaintiff sued in his own right and on his own behalf. No doubt Vijay Kumar claimed the right to enforce the mortgage .as the legal representative of Tarabai. But he made this claim on his own behalf and not as representing the daughters of Tarabai. Mahabalkumari must be regarded as a new plaintiff and Rajkumari and Premkumari must be regarded as new defendants and by reason of S. 22 (1) the suit must as regards them be deemed to have been instituted when they were made parties21. We think that the High Court had power to join Mahabalkumari as a party plaintiff under O. 1, R. 10 of the Code of Civil Procedure and to join Rajkumari and Premkumari as defendants under O. 1, R. 10 (2) and to allow consequential amendments of the plaint under O. 6, R. 17. But having regard to the bar of limitation, the added parties are not entitled to obtain any relief22. So far as Vijay Kumar is concerned, the suit as brought by him was dismissed by the High Court. There is no appeal by him. On his behalf, it was not contended that we should exercise in his favour our powers under 0. 41, R. 33 of the Code of Civil Procedure, or that we should set aside the decree of dismissal of the suit against him and remand the case to the High Court for decision of the question whether he is the adopted son and heir of Tarabai. Even if such prayer were made, on the facts of this case we would not be inclined to exercise our powers under 0. 41, R. 33 and to set aside the decree of the High Court as to the dismissal of the suit against himWe were not called upon by counsel to consider any other provision. That, however, cannot justify the order, for it only permits addition of a plaintiff and does not provide for the addition of a defendant while the order directs addition of both a plaintiff and two defendants. Was it then properly made in so far as it added a plaintiff? I do not think so. The addition of Mahabalkumari as a plaintiff could not be made under thee unless it was necessary for the determination of the real matter in dispute. Now, adding her as a plaintiff would have availed nothing unless Rajkumari and Premkumari were also added as defendants, and that could not be done under the. No decree could have been passed in her favour alone if the case of adoption failed, for she would then be entitled to the mortgagees right along with her sisters. The addition of Mahabalkumari as plaintiff only would have been futile; it would not have helped in the decision of any matter in dispute5. Now,. (2) of O. 1, R. 10 permits the addition of both plaintiffs and defendants in certain circumstances. The order however was not sought to be justified under that provision and there was good reason for it. It was concededand in my opiniont in view of S. 22 of the Limitation Act. the suit as regards the parties added under thise had to be deemed to have been instituted when they were added. This was also the view expressed by the High Court. Now it is not in dispute that a suit filed on the date when the three sisters were added, to enforce the mortgage would have been barred. We may add that there is authority for the view that even the addition of defendants alone may attract the bar of limitation: See Ramdoyal v. Junmenjoy, (1887) ILR 14 Cal 791, Guruvayya v. Dattatraya, (1904) ILR 28 Bom 11. I think that the addition of Rajkumari and Premkumari as defendants was of the kind considered in these cases. Therefore, it would have been futile to add any of the parties under this. In view of the bar of limitation, such addition would not have resulted in any decree being passed and, therefore, the addition should not have been ordered. I am, however, not to be understood as holding that apart from the difficulty created by S. 22 the order could have been properly passed under the. I have the gravest doubts if it could. It is unnecessary to discuss the matter further6. The High Court, relying on Ravji v. Mahadev, (1898) ILR 22 Bom 672 expressed the view that when a party is added under. (1) of O. 1, R. 10, S. 22 of the Limitation Act does not apply and no bar of limitation arises. No other reason was given by the High Court or suggested by counsel in this Court to avoid the bar of limitation imposed by S. 22. If the bar operated, no addition of parties could, of course, be made. As I am of opinion that the order could not be justified by the terms of that, it is not really necessary for me to consider this question of limitation. I wish however to observe that, as at present advised, I am not at all sure that S. 22 does not apply to an addition of parties under. (1) of R. 10 of O. 1. There is no principle to support such a view. Nor do I think that Ravjis case, (1898) ILR 22 Bom 672 clearly expresses it. All that itd that too in the judgment of one of the learned Judges onlywas that when in a suit by a benamidar the real owner is added, it was really the original suit that was continued. Obviously, the learned Judge thought that he was dealing with a case where there was no real addition of parties. It would seem that that is not the case where an order under thee is made. That would be a case like that of a correction of a misdescription of a party for which a resort to thee would not be necessary: Purshottam Umedbhai and Go. v. Manilal and Sons, (1961) 1 SCR 982 : (AIR 1961 SC 325 ). Then again Ravjis case, (1898) ILR 22 Bom 672 does not seem to have been approved in later Bombay cases: See e.g., Krishnaji v. Hanmaraddi, ILILR 58 Bom 536: (AIR 1934 Bom 385 ). Further Ravjis case, (1898) ILR 22 Bom 6672,would not support the order in hand if my reading of it is correct. The present is not a case of a continuation of the original suit. Here parties were added to press their own rights which are in conflict with and antagonistic to those which were being pressed in the suit as originally framed. I do not consider it necessary to pursue this matter further on the present occasion7. It was then said that in the present case there was no substantial addition of parties as the original suit was in the capacity of a proprietor of the firm of Narayandas Chunilal and all that was done was to add persons who might be the real proprietors. This was said in order to get out of the bar of limitation by showing that it was the original suit that was continued in spite of the addition of parties. There seems to be authority for the view that when a suit is filed in a representative capacity, if it turns out to be doubtful whether that capacity existed or had continued, the proper representative or the owner, as the case may be, might be added even after the date when the suit would be barred. I will assume that the cases lay down the law correctly but they do not, in my view, afford any assistance in the present case. First, a suit by a person claiming to be the sole owner of the properties of a business carried on in a firm name, as Vijay Kumars suit was, is not a suit in a representative capacity; he represents no one but himself. A firm is not a legal entity which could or had to be represented by anyone else. As is well known a firm means only the partners taken together. There is no such thing as the capacity of a proprietor of a firm; the capacity of a proprietor of a firm is only the proprietors individual capacity. Secondly, no authority has been brought to our notice which shows that if parties are added with a claim which is antagonistic to the claim of the original plaintiff in the suit, as has happened here, that would still be a case where the original suit should be deemed to have been continued8. It may be that if the suit had initially been filed in the form in which it stood after the amendment, it would have been a good suit, as to which however I do not say anything on the present occasion. If it were so, that would have been under the other provisions of the Code permitting joinder of parties and perhaps also of causes of action when instituting a suit, none of which was or could be pressed for our consideration. These provisions are merely permissive and relate to what the plaintiff might do if he is so minded": Prayaga Doss v. Board of Commissioners for Hindu Religious Endowments. Madras, ILR 50 Mad 34 (AIR 1926 Mad 836 ). That is not the case where addition of parties is sought under O. 1, R. 10,. (1) and (2): such addition can only be made under the provisions of these9. For these reasons, I think that the order adding, parties is insupportable. If that order goes, as it should, the decree which is in favour of the added parties cannot stand, for they are then strangers to the suit. As there is no decree in favour of Vijay Kumar and as in fact the suit considered as brought by him has been dismissed by both the courts belowby the High Court with his tacit approval and there is no appeal by him, this appeal must be allowed. In this view of the matter, I do not feel called upon to deal with the other grounds, advanced by Mr Desai19. The Court has power to add a new plaintiff at any stage of the suit, and in the absence of a statutory provision like S. 22 the suit would be regarded as having been commenced by the new plaintiff at the time when it was first instituted. But the policy of S. 22 is to prevent this result, and the effect of the section is that the suit must be regarded as having been instituted by the new plaintiff when he is made a party, see Ramsubuk v. Ramlall Koondoo, (1881) ILR 6 Cal 815.The rigour of this law has been mitigated by the proviso to .S. 21(1) of the Indian Limitation Act, 1963, which enables the Court on being, satisfied that the omission to, include a new plaintiff or a new defendant was due to a mistake made in good faith, to direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. Unfortunately, the proviso to S. 21 (1) of the Indian Limitation Act, 1963 has no application to this case, and we have no power to direct that the suit should be deemed to have been instituted on a date earlier than November 4, 195820. It follows that as regards Mahabalkumari, Rajkumari and Premkumari the suit must be regarded as instituted on November 4, 1958. As far as they are concerned, the suit is barred by limitation and no decree can be passed in their favour. The decree passed by the High Court in their favour cannot be sustained and must be set aside. | 1 | 4,596 | 2,757 | ### 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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names of Tarabais daughters. This is also not a case where a wrong defendant has been sued as representing the estate of a deceased person and subsequently the real representative is added as a defendant. Nor is this a case where a wrong plaintiff has sued in a representative capacity and the person whom he intended to represent was subsequently added as a plaintiff. This is a case where the original plaintiff sued in his own right and on his own behalf. No doubt Vijay Kumar claimed the right to enforce the mortgage .as the legal representative of Tarabai. But he made this claim on his own behalf and not as representing the daughters of Tarabai. Mahabalkumari must be regarded as a new plaintiff and Rajkumari and Premkumari must be regarded as new defendants and by reason of S. 22 (1) the suit must as regards them be deemed to have been instituted when they were made parties. 16. In Meyappa Chetty v. Supramanian Chetty, 43 Ind App 113: (AIR 1916 PC 202), the Privy Council had occasion to consider the similar provisions of S. 22 of the Straits Settlement Ordinance No. 6 of 1896 which read :"When, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall as regards him be deemed to have been instituted when he was so made a party ............. Construing this section, Lord Parker of Waddington observed :"Their lordships are of opinion that S. 22 contemplates cases in which a suit is defective by reason of the person or one of the persons in whom the right of suit is vested not being before the Court. Section 133 of the Civil Procedure Code provides against the defence of a suit on this around and enables the proper party to be added or substituted. If A is the right person to sue, it would be clearly wrong to allow him, for the sake of avoiding the Limitation Ordinance, to take advantage of a suit improperly instituted by B." 17. Similarly, in this case the daughters of Tarabai cannot, for the purpose of avoiding the Limitation Act, take advantage of the suit improperly instituted by Vijay Kumar. 18. In Subodini Debi v. Cumar Ganoda Kant Roy Bahadur, (1887) ILR 14 Cal 400, the Calcutta High Court held that there was a difference between substituting a new person as plaintiff under S. 27 of the Code of Civil Procedure, 1882 and the addition of a new person as defendant under S. 32 of the Code and that the change of parties as plaintiffs did not affect the question of limitation.. This decision was followed by Parsons, J. in (1898) ILR 22 Bom 672 at p. 679. But the learned Judges deciding those cases did not refer to S. 22 of the Indian Limitation Act, 1877 and they appear to have completely overlooked that section.Section 22 makes no distinction between sub-r . (1) and sub-r. (2) of O. 1, R. 10. The section in express terms applies whenever a new plaintiff or a new defendant is substituted after the institution of a suit. 19. The Court has power to add a new plaintiff at any stage of the suit, and in the absence of a statutory provision like S. 22 the suit would be regarded as having been commenced by the new plaintiff at the time when it was first instituted. But the policy of S. 22 is to prevent this result, and the effect of the section is that the suit must be regarded as having been instituted by the new plaintiff when he is made a party, see Ramsubuk v. Ramlall Koondoo, (1881) ILR 6 Cal 815.The rigour of this law has been mitigated by the proviso to .S. 21(1) of the Indian Limitation Act, 1963, which enables the Court on being, satisfied that the omission to, include a new plaintiff or a new defendant was due to a mistake made in good faith, to direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. Unfortunately, the proviso to S. 21 (1) of the Indian Limitation Act, 1963 has no application to this case, and we have no power to direct that the suit should be deemed to have been instituted on a date earlier than November 4, 1958. 20. It follows that as regards Mahabalkumari, Rajkumari and Premkumari the suit must be regarded as instituted on November 4, 1958. As far as they are concerned, the suit is barred by limitation and no decree can be passed in their favour. The decree passed by the High Court in their favour cannot be sustained and must be set aside. 21. We think that the High Court had power to join Mahabalkumari as a party plaintiff under O. 1, R. 10 of the Code of Civil Procedure and to join Rajkumari and Premkumari as defendants under O. 1, R. 10 (2) and to allow consequential amendments of the plaint under O. 6, R. 17. But having regard to the bar of limitation, the added parties are not entitled to obtain any relief. 22. So far as Vijay Kumar is concerned, the suit as brought by him was dismissed by the High Court. There is no appeal by him. On his behalf, it was not contended that we should exercise in his favour our powers under 0. 41, R. 33 of the Code of Civil Procedure, or that we should set aside the decree of dismissal of the suit against him and remand the case to the High Court for decision of the question whether he is the adopted son and heir of Tarabai. Even if such prayer were made, on the facts of this case we would not be inclined to exercise our powers under 0. 41, R. 33 and to set aside the decree of the High Court as to the dismissal of the suit against him.
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That would be a case like that of a correction of a misdescription of a party for which a resort to thee would not be necessary: Purshottam Umedbhai and Go. v. Manilal and Sons, (1961) 1 SCR 982 : (AIR 1961 SC 325 ). Then again Ravjis case, (1898) ILR 22 Bom 672 does not seem to have been approved in later Bombay cases: See e.g., Krishnaji v. Hanmaraddi, ILILR 58 Bom 536: (AIR 1934 Bom 385 ). Further Ravjis case, (1898) ILR 22 Bom 6672,would not support the order in hand if my reading of it is correct. The present is not a case of a continuation of the original suit. Here parties were added to press their own rights which are in conflict with and antagonistic to those which were being pressed in the suit as originally framed. I do not consider it necessary to pursue this matter further on the present occasion7. It was then said that in the present case there was no substantial addition of parties as the original suit was in the capacity of a proprietor of the firm of Narayandas Chunilal and all that was done was to add persons who might be the real proprietors. This was said in order to get out of the bar of limitation by showing that it was the original suit that was continued in spite of the addition of parties. There seems to be authority for the view that when a suit is filed in a representative capacity, if it turns out to be doubtful whether that capacity existed or had continued, the proper representative or the owner, as the case may be, might be added even after the date when the suit would be barred. I will assume that the cases lay down the law correctly but they do not, in my view, afford any assistance in the present case. First, a suit by a person claiming to be the sole owner of the properties of a business carried on in a firm name, as Vijay Kumars suit was, is not a suit in a representative capacity; he represents no one but himself. A firm is not a legal entity which could or had to be represented by anyone else. As is well known a firm means only the partners taken together. There is no such thing as the capacity of a proprietor of a firm; the capacity of a proprietor of a firm is only the proprietors individual capacity. Secondly, no authority has been brought to our notice which shows that if parties are added with a claim which is antagonistic to the claim of the original plaintiff in the suit, as has happened here, that would still be a case where the original suit should be deemed to have been continued8. It may be that if the suit had initially been filed in the form in which it stood after the amendment, it would have been a good suit, as to which however I do not say anything on the present occasion. If it were so, that would have been under the other provisions of the Code permitting joinder of parties and perhaps also of causes of action when instituting a suit, none of which was or could be pressed for our consideration. These provisions are merely permissive and relate to what the plaintiff might do if he is so minded": Prayaga Doss v. Board of Commissioners for Hindu Religious Endowments. Madras, ILR 50 Mad 34 (AIR 1926 Mad 836 ). That is not the case where addition of parties is sought under O. 1, R. 10,. (1) and (2): such addition can only be made under the provisions of these9. For these reasons, I think that the order adding, parties is insupportable. If that order goes, as it should, the decree which is in favour of the added parties cannot stand, for they are then strangers to the suit. As there is no decree in favour of Vijay Kumar and as in fact the suit considered as brought by him has been dismissed by both the courts belowby the High Court with his tacit approval and there is no appeal by him, this appeal must be allowed. In this view of the matter, I do not feel called upon to deal with the other grounds, advanced by Mr Desai19. The Court has power to add a new plaintiff at any stage of the suit, and in the absence of a statutory provision like S. 22 the suit would be regarded as having been commenced by the new plaintiff at the time when it was first instituted. But the policy of S. 22 is to prevent this result, and the effect of the section is that the suit must be regarded as having been instituted by the new plaintiff when he is made a party, see Ramsubuk v. Ramlall Koondoo, (1881) ILR 6 Cal 815.The rigour of this law has been mitigated by the proviso to .S. 21(1) of the Indian Limitation Act, 1963, which enables the Court on being, satisfied that the omission to, include a new plaintiff or a new defendant was due to a mistake made in good faith, to direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. Unfortunately, the proviso to S. 21 (1) of the Indian Limitation Act, 1963 has no application to this case, and we have no power to direct that the suit should be deemed to have been instituted on a date earlier than November 4, 195820. It follows that as regards Mahabalkumari, Rajkumari and Premkumari the suit must be regarded as instituted on November 4, 1958. As far as they are concerned, the suit is barred by limitation and no decree can be passed in their favour. The decree passed by the High Court in their favour cannot be sustained and must be set aside.
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SHRI K. JAYARAM & ORS Vs. BANGALORE DEVELOPMENT AUTHORITY & ORS | allowed to play hide and seek or to pick and choose the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because the court knows law but not facts. 39. If the primary object as highlighted in Kensington Income Tax Commrs.(supra) is kept in mind, an applicant who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court. 16. It is necessary for us to state here that in order to check multiplicity of proceedings pertaining to the same subject-matter and more importantly to stop the menace of soliciting inconsistent orders through different judicial forums by suppressing material facts either by remaining silent or by making misleading statements in the pleadings in order to escape the liability of making a false statement, we are of the view that the parties have to disclose the details of all legal proceedings and litigations either past or present concerning any part of the subject-matter of dispute which is within their knowledge. In case, according to the parties to the dispute, no legal proceedings or court litigations was or is pending, they have to mandatorily state so in their pleadings in order to resolve the dispute between the parties in accordance with law. 17. In the instant case, since the appellants have not disclosed the filing of the suit and its dismissal and also the dismissal of the appeal against the judgment of the civil court, the appellants have to be non-suited on the ground of suppression of material facts. They have not come to the court with clean hands and they have also abused the process of law. Therefore, they are not entitled for the extraordinary, equitable and discretionary relief. 18. Apart from the above, we have also examined the case on merits. As noticed above, Survey No.13 measures 5 acres 9 guntas, out of which 12 guntas were kharab-B land. Notification in respect of the entire 5 acres 9 guntas had been issued and possession of the land had been been taken long back. The contention of the appellants is that their father, M. Krishna Reddy, was the owner of 1 acre 26 guntas of land in Survey Nos.13/2 and 13/4. According to them, 08 guntas of land has not been acquired and compensation has not been paid in respect of this land. Records produced by the BDA would disclose that 08 guntas of land is kharab-B land. Therefore, there is no question of payment of compensation in respect of this land, though, the same was included in the preliminary and final notification. The final notification was issued as early as in the year 1967. The appellants have claimed enhanced compensation also for 1 acre 18 guntas of land and they have raised this issue at a highly belated stage after lapse of about 34 years. 19. Identical contentions have been raised by the appellants in the aforesaid suit. The said suit was dismissed and the judgment of the civil court was confirmed by the High Court in RFA NO.516/2003 on 01.07.2003, by observing as under: ….. Accordingly in the instant case, the trial Court adjudicated upon issue No.3 as a preliminary issue which related to the maintainability of the suit and on the basis of the facts which could not be reasonably disputed and in respect of which there is presumption of correctness, it has found that the acquisition proceedings in respect of the entire extent of land in Sy.No.13 having become final and conclusive, the suit of the plaintiffs was impliedly barred under Section 9 of CPC and hence not maintainable. I find no perversity in the view taken by the trial court. It is no doubt true that a contention was sought to be advanced on behalf of the appellant that only an extent of 1 acre 18 guntas of land in Sy. Nos.13/2 and 13/4 had been acquired by the BDA and the remaining extent of 8 guntas of land is continued to be in possession of the plaintiff. But the materials placed on record clearly indicated that the entire extent of land in Sy. No.13 had been acquired by the BDA for public purposes and the compensation had been paid thereon. It is not in dispute that the plaintiffs father Shri Krishna Reddy had participated in the acquisition proceedings before the respondent/BDA and he was one of the notified khatedars. Under the circumstances, therefore, when the entire extent of land has been acquired, it is rather difficult to accept the claim of the appellant/plaintiff. Hence, I find no merit in this appeal filed by the appellant. 20. This finding of the High Court has attained finality and the writ court cannot sit in an appeal over the judgment passed by the High Court in the appeal. The conclusions reached by the court in the appeal are binding on the appellants. | 0[ds]11. The documents produced by the BDA would clearly disclose that the entire extent of 5 acres 9 guntas of land including 12 guntas of kharab-B land was notified for acquisition. M. Krishna Reddy, the father of the appellants, claimed to be the owner of 1 acre 26 guntas of lands in the said survey number and it was further contended that 1 acre and 18 guntas have been acquired and 8 guntas was left out from the acquisition. It was further contended that BDA had formed the sites in the said 8 guntas of land left out from acquisition and allotted them to respondent nos.5 & 6. Admittedly, the appellants had filed O.S. No.3936/1999 before the Additional City Civil Court against the BDA seeking permanent injunction while pleading identical facts and urging similar grounds. The said suit was dismissed by the trial court. The appeal filed against the said judgment of the trial court was also dismissed by the High Court. The appellants have not disclosed the filing of the suit, its dismissal by the Civil Court and the confirmation of the said judgment by the High Court in the writ petition. It is clear that the appellants have suppressed these material facts which are relevant for deciding the question involved in the writ petitions. Thus, the appellants have not come to the court with clean hands.12. It is well-settled that the jurisdiction exercised by the High Court under Article 226 of the Constitution of India is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the writ court must come with clean hands and put forward all facts before the Court without concealing or suppressing anything. A litigant is bound to state all facts which are relevant to the litigation. If he withholds some vital or relevant material in order to gain advantage over the other side then he would be guilty of playing fraud with the court as well as with the opposite parties which cannot be countenanced.13. This Court in Prestige Lights Ltd. V. State Bank of India (2007) 8 SCC 449 has held that a prerogative remedy is not available as a matter of course. In exercising extraordinary power, a writ court would indeed bear in mind the conduct of the party which is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. It was held thus:33. It is thus clear that though the appellant Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a court of law is also a court of equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter.15. In K.D. Sharma v. Steel Authority of India Limited and Others (2008)12 SCC 481 , it was held thus:34. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the writ court must come with clean hands, put forward all the facts before the court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the court, his petition may be dismissed at the threshold without considering the merits of the claim.35. The underlying object has been succinctly stated by Scrutton, L.J., in the leading case of R. v. Kensington Income Tax Commrs.- (1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA) in the following words: (KB p. 514)… it has been for many years the rule of the court, and one which it is of the greatest importance to maintain, that when an applicant comes to the court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts—it says facts, not law. He must not misstate the law if he can help it—the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement.36. A prerogative remedy is not a matter of course. While exercising extraordinary power a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, We will not listen to your application because of what you have done. The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it.37. In Kensington Income Tax Commrs.(supra), Viscount Reading, C.J. observed: (KB pp. 495-96)… Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicants affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit.38. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play hide and seek or to pick and choose the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because the court knows law but not facts.39. If the primary object as highlighted in Kensington Income Tax Commrs.(supra) is kept in mind, an applicant who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court.17. In the instant case, since the appellants have not disclosed the filing of the suit and its dismissal and also the dismissal of the appeal against the judgment of the civil court, the appellants have to be non-suited on the ground of suppression of material facts. They have not come to the court with clean hands and they have also abused the process of law. Therefore, they are not entitled for the extraordinary, equitable and discretionary relief.18. Apart from the above, we have also examined the case on merits. As noticed above, Survey No.13 measures 5 acres 9 guntas, out of which 12 guntas were kharab-B land. Notification in respect of the entire 5 acres 9 guntas had been issued and possession of the land had been been taken long back. The contention of the appellants is that their father, M. Krishna Reddy, was the owner of 1 acre 26 guntas of land in Survey Nos.13/2 and 13/4. According to them, 08 guntas of land has not been acquired and compensation has not been paid in respect of this land. Records produced by the BDA would disclose that 08 guntas of land is kharab-B land. Therefore, there is no question of payment of compensation in respect of this land, though, the same was included in the preliminary and final notification. The final notification was issued as early as in the year 1967. The appellants have claimed enhanced compensation also for 1 acre 18 guntas of land and they have raised this issue at a highly belated stage after lapse of about 34 years.19. Identical contentions have been raised by the appellants in the aforesaid suit. The said suit was dismissed and the judgment of the civil court was confirmed by the High Court in RFA NO.516/2003 on 01.07.2003,20. This finding of the High Court has attained finality and the writ court cannot sit in an appeal over the judgment passed by the High Court in the appeal. The conclusions reached by the court in the appeal are binding on the appellants. | 0 | 3,912 | 2,019 | ### 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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allowed to play hide and seek or to pick and choose the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because the court knows law but not facts. 39. If the primary object as highlighted in Kensington Income Tax Commrs.(supra) is kept in mind, an applicant who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court. 16. It is necessary for us to state here that in order to check multiplicity of proceedings pertaining to the same subject-matter and more importantly to stop the menace of soliciting inconsistent orders through different judicial forums by suppressing material facts either by remaining silent or by making misleading statements in the pleadings in order to escape the liability of making a false statement, we are of the view that the parties have to disclose the details of all legal proceedings and litigations either past or present concerning any part of the subject-matter of dispute which is within their knowledge. In case, according to the parties to the dispute, no legal proceedings or court litigations was or is pending, they have to mandatorily state so in their pleadings in order to resolve the dispute between the parties in accordance with law. 17. In the instant case, since the appellants have not disclosed the filing of the suit and its dismissal and also the dismissal of the appeal against the judgment of the civil court, the appellants have to be non-suited on the ground of suppression of material facts. They have not come to the court with clean hands and they have also abused the process of law. Therefore, they are not entitled for the extraordinary, equitable and discretionary relief. 18. Apart from the above, we have also examined the case on merits. As noticed above, Survey No.13 measures 5 acres 9 guntas, out of which 12 guntas were kharab-B land. Notification in respect of the entire 5 acres 9 guntas had been issued and possession of the land had been been taken long back. The contention of the appellants is that their father, M. Krishna Reddy, was the owner of 1 acre 26 guntas of land in Survey Nos.13/2 and 13/4. According to them, 08 guntas of land has not been acquired and compensation has not been paid in respect of this land. Records produced by the BDA would disclose that 08 guntas of land is kharab-B land. Therefore, there is no question of payment of compensation in respect of this land, though, the same was included in the preliminary and final notification. The final notification was issued as early as in the year 1967. The appellants have claimed enhanced compensation also for 1 acre 18 guntas of land and they have raised this issue at a highly belated stage after lapse of about 34 years. 19. Identical contentions have been raised by the appellants in the aforesaid suit. The said suit was dismissed and the judgment of the civil court was confirmed by the High Court in RFA NO.516/2003 on 01.07.2003, by observing as under: ….. Accordingly in the instant case, the trial Court adjudicated upon issue No.3 as a preliminary issue which related to the maintainability of the suit and on the basis of the facts which could not be reasonably disputed and in respect of which there is presumption of correctness, it has found that the acquisition proceedings in respect of the entire extent of land in Sy.No.13 having become final and conclusive, the suit of the plaintiffs was impliedly barred under Section 9 of CPC and hence not maintainable. I find no perversity in the view taken by the trial court. It is no doubt true that a contention was sought to be advanced on behalf of the appellant that only an extent of 1 acre 18 guntas of land in Sy. Nos.13/2 and 13/4 had been acquired by the BDA and the remaining extent of 8 guntas of land is continued to be in possession of the plaintiff. But the materials placed on record clearly indicated that the entire extent of land in Sy. No.13 had been acquired by the BDA for public purposes and the compensation had been paid thereon. It is not in dispute that the plaintiffs father Shri Krishna Reddy had participated in the acquisition proceedings before the respondent/BDA and he was one of the notified khatedars. Under the circumstances, therefore, when the entire extent of land has been acquired, it is rather difficult to accept the claim of the appellant/plaintiff. Hence, I find no merit in this appeal filed by the appellant. 20. This finding of the High Court has attained finality and the writ court cannot sit in an appeal over the judgment passed by the High Court in the appeal. The conclusions reached by the court in the appeal are binding on the appellants.
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statement.36. A prerogative remedy is not a matter of course. While exercising extraordinary power a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, We will not listen to your application because of what you have done. The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it.37. In Kensington Income Tax Commrs.(supra), Viscount Reading, C.J. observed: (KB pp. 495-96)… Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicants affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit.38. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play hide and seek or to pick and choose the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because the court knows law but not facts.39. If the primary object as highlighted in Kensington Income Tax Commrs.(supra) is kept in mind, an applicant who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court.17. In the instant case, since the appellants have not disclosed the filing of the suit and its dismissal and also the dismissal of the appeal against the judgment of the civil court, the appellants have to be non-suited on the ground of suppression of material facts. They have not come to the court with clean hands and they have also abused the process of law. Therefore, they are not entitled for the extraordinary, equitable and discretionary relief.18. Apart from the above, we have also examined the case on merits. As noticed above, Survey No.13 measures 5 acres 9 guntas, out of which 12 guntas were kharab-B land. Notification in respect of the entire 5 acres 9 guntas had been issued and possession of the land had been been taken long back. The contention of the appellants is that their father, M. Krishna Reddy, was the owner of 1 acre 26 guntas of land in Survey Nos.13/2 and 13/4. According to them, 08 guntas of land has not been acquired and compensation has not been paid in respect of this land. Records produced by the BDA would disclose that 08 guntas of land is kharab-B land. Therefore, there is no question of payment of compensation in respect of this land, though, the same was included in the preliminary and final notification. The final notification was issued as early as in the year 1967. The appellants have claimed enhanced compensation also for 1 acre 18 guntas of land and they have raised this issue at a highly belated stage after lapse of about 34 years.19. Identical contentions have been raised by the appellants in the aforesaid suit. The said suit was dismissed and the judgment of the civil court was confirmed by the High Court in RFA NO.516/2003 on 01.07.2003,20. This finding of the High Court has attained finality and the writ court cannot sit in an appeal over the judgment passed by the High Court in the appeal. The conclusions reached by the court in the appeal are binding on the appellants.
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N.S. Rajabadar Mudaliar Vs. M.S.Vadivelu Mudaliar & Others | appellants suit.2. The important question which falls for consideration is whether the deed of trust dated 1st January, 1908 created an absolute dedication to charity subject only to a charge for the payment of maintenance to the members of the founders family or whether the dominant intention of the founder was the maintenance of the family and the grant to the charities was secondary.3. The trust deed was executed on 1st January, 1908, by S.D. Mudaliar in favour of himself, A. P. M. Mudaliar, M.T.S. Mudaliar and C.V.S. Mudaliar. S.D. Mudaliar and his pre-deceased son D.S. Mudaliars adopted son S. Mudaliar effected a deed of partition dated 25th November, 1907 in respect of the immovable and movable properties. By the said deed of partition S.D. Mudaliar the settlor of the deed of trust obtained the property forming the subject matter of the said trust deed. The founder dedicated the said property by the deed of trust to the trustees. The trustees were the settlor and three other Mudaliars, viz., A.P.M. Mudaliar M.T.S. Mudaliar and C.V.S. Mudaliar.4. Broadly stated, the trust deed contained the following provisions. First, the trustees after excluding the tax and maramath expenses, shall during the life time of the settlor pay him entire income for the purpose of discharging the debt of Rs. 3,000 mentioned in the deed of partition and for the maintenance of the settlor during his lifetime. Secondly, after the death of the settlor the balance of the debt that might be found due on the date after excluding the payments made by the settlor is to be paid to the creditors. Thirdly, after the settlors lifetime a sum of Rs. 10 per mensem would be paid out of the income to the settlors daughter-in-law, namely, the appellants grand-mother, viz., fathers mother “for her lifetime, for her charity expenses”. Fourthly, after the lifetime of the appellants grand-mother the trustees are to pay a sum of Rs. 10 per mensem permanently to the appellants adoptive father who was the adopted son of the appellants grand-mother and of the settlors pre-deceased son and after the lifetime of the appellants adoptive father “to his male descendants hereditarily”. Fifthly, the settlor gave full power to the trustees after meeting the expenses of the Utsavam to be celebrated in Nungambakkam Devasthanams and the trust expenses and the tax and maramath expenses to expend such sum as they might deem proper to maintain and educate the male descendants of the settlors pre-deceased adopted son. The settlor further provided that if the trustees were not willing they would stop such maintenance and education expenses. Sixthly, the trustees after the life-time of the settlor would spend from and out of the aforesaid trust income in such manner as they might deem proper and have the Vasantha Utsavam celebrated for a period of not less than three days during the Vasantha Utsavam which would be celebrated every year in the Temples of Sri Agastheeswarar and Venkatesa Perumal installed by the settlors ancestors and enshrined in Nungambakkam. Finally, after the lifetime of the settlor the trustees were directed to accumulate the amount remaining out of the income from the property after excluding the assessment, quit-rent and maramath and the monthly and annual expenses and purchase properties therewith and provide the same as income for the aforesaid charity.5. In the background of these provisions, counsel for the appellant contended that the dominant intention was a provision by way of a settlement for the members of the family and that the charities were subsidiary purposes to the said deed of trust. The provisions or direction to the trustees first to accumulate the income after meeting the expenses of assessment, quit rent and maramath and the monthly and annual expenses and secondly to purchase properties therewith were to provide income only for the aforesaid charity. The words “for the aforesaid charity” are of important significance. The entire accumulation was for the charity. The provisions regarding maintenance and education were subordinate to the provisions for meeting the expenses of the Utsavam. The matter does not rest there. The provisions regardingmaintenance andeducation were to be at the sole discretion of the trustees who could stop the same if the trustees were not willing. This power of trustees to stop maintenance and education expenses is a complete negation of the appellants contention that the intention of the settlor was that education and maintenance expenses were the dominant purpose of the settlement. The reason is obvious. The dominant object is never allowed by the settlor to be repelled by a discretion conferred on the trustees to stop such expenses. This power to stop is consistent with the intention of the settlor to treat the education and maintenance expenses as secondly objects only after the primary purpose of the trust, namely, charities are fulfilled. The tenor of the document points to the inescapable conclusion that the pre-dominant and overwhelming intention of the settlor was to benefit the charities and provide for the same not only by making the expenses for the charities as the first and foremost direction but also by providing for accumulation of income and purchase of properties out of the said accumulated income only for the purpose of charities.6. A contention was raised by the appellant that the High Court should not have reversed the finding of the trial Court for the payment of maintenance of the appellant at Rs. 50 per mensem. The High Court came to the conclusion that there was no legal principle to sustain this increase in maintenance. In this Court the contention which was raised in the High Court was repeated, viz., that this was a case where the cy-pres doctrine would apply. The cy-pres doctrine applies where a charitable trust is initially impossible or impracticable and the Court applies the property cy-pres, viz., to some other charities as nearly as possible, resembling the original trust. In the present case, the maintenance and education expenses are neither charitable trusts nor similar objects of charity.7. | 0[ds]In the background of these provisions,counsel for the appellant contended that the dominant intention was a provision by way of a settlement for the members of the family and that the charities were subsidiary purposes to the said deed oftrust. The provisions or direction to the trustees first to accumulate the income after meeting the expenses of assessment, quit rent and maramath and the monthly and annual expenses and secondly to purchase properties therewith were to provide income only for the aforesaid charity. The wordsare of important significance. The entire accumulation was for the charity. The provisions regarding maintenance and education were subordinate to the provisions for meeting the expenses of the Utsavam. The matter does not rest there. The provisions regardingmaintenance andeducation were to be at the sole discretion of the trustees who could stop the same if the trustees were not willing. This power of trustees to stop maintenance and education expenses is a complete negation of the appellants contention that the intention of the settlor was that education and maintenance expenses were the dominant purpose of the settlement. The reason is obvious. The dominant object is never allowed by the settlor to be repelled by a discretion conferred on the trustees to stop such expenses. This power to stop is consistent with the intention of the settlor to treat the education and maintenance expenses as secondly objects only after the primary purpose of the trust, namely, charities are fulfilled. The tenor of the document points to the inescapable conclusion that theand overwhelming intention of the settlor was to benefit the charities and provide for the same not only by making the expenses for the charities as the first and foremost direction but also by providing for accumulation of income and purchase of properties out of the said accumulated income only for the purpose ofn was raised by the appellant that the High Court should not have reversed the finding of the trial Court for the payment of maintenance of the appellant at Rs. 50 per mensem.The High Court came to the conclusion that there was no legal principle to sustain this increase in maintenance. In this Court the contention which was raised in the High Court was repeated, viz., that this was a case where thedoctrine would apply. Thedoctrine applies where a charitable trust is initially impossible or impracticable and the Court applies the propertyviz., to some other charities as nearly as possible, resembling the original trust. In the present case, the maintenance and education expenses are neither charitable trusts nor similar objects of charity. | 0 | 1,110 | 458 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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appellants suit.2. The important question which falls for consideration is whether the deed of trust dated 1st January, 1908 created an absolute dedication to charity subject only to a charge for the payment of maintenance to the members of the founders family or whether the dominant intention of the founder was the maintenance of the family and the grant to the charities was secondary.3. The trust deed was executed on 1st January, 1908, by S.D. Mudaliar in favour of himself, A. P. M. Mudaliar, M.T.S. Mudaliar and C.V.S. Mudaliar. S.D. Mudaliar and his pre-deceased son D.S. Mudaliars adopted son S. Mudaliar effected a deed of partition dated 25th November, 1907 in respect of the immovable and movable properties. By the said deed of partition S.D. Mudaliar the settlor of the deed of trust obtained the property forming the subject matter of the said trust deed. The founder dedicated the said property by the deed of trust to the trustees. The trustees were the settlor and three other Mudaliars, viz., A.P.M. Mudaliar M.T.S. Mudaliar and C.V.S. Mudaliar.4. Broadly stated, the trust deed contained the following provisions. First, the trustees after excluding the tax and maramath expenses, shall during the life time of the settlor pay him entire income for the purpose of discharging the debt of Rs. 3,000 mentioned in the deed of partition and for the maintenance of the settlor during his lifetime. Secondly, after the death of the settlor the balance of the debt that might be found due on the date after excluding the payments made by the settlor is to be paid to the creditors. Thirdly, after the settlors lifetime a sum of Rs. 10 per mensem would be paid out of the income to the settlors daughter-in-law, namely, the appellants grand-mother, viz., fathers mother “for her lifetime, for her charity expenses”. Fourthly, after the lifetime of the appellants grand-mother the trustees are to pay a sum of Rs. 10 per mensem permanently to the appellants adoptive father who was the adopted son of the appellants grand-mother and of the settlors pre-deceased son and after the lifetime of the appellants adoptive father “to his male descendants hereditarily”. Fifthly, the settlor gave full power to the trustees after meeting the expenses of the Utsavam to be celebrated in Nungambakkam Devasthanams and the trust expenses and the tax and maramath expenses to expend such sum as they might deem proper to maintain and educate the male descendants of the settlors pre-deceased adopted son. The settlor further provided that if the trustees were not willing they would stop such maintenance and education expenses. Sixthly, the trustees after the life-time of the settlor would spend from and out of the aforesaid trust income in such manner as they might deem proper and have the Vasantha Utsavam celebrated for a period of not less than three days during the Vasantha Utsavam which would be celebrated every year in the Temples of Sri Agastheeswarar and Venkatesa Perumal installed by the settlors ancestors and enshrined in Nungambakkam. Finally, after the lifetime of the settlor the trustees were directed to accumulate the amount remaining out of the income from the property after excluding the assessment, quit-rent and maramath and the monthly and annual expenses and purchase properties therewith and provide the same as income for the aforesaid charity.5. In the background of these provisions, counsel for the appellant contended that the dominant intention was a provision by way of a settlement for the members of the family and that the charities were subsidiary purposes to the said deed of trust. The provisions or direction to the trustees first to accumulate the income after meeting the expenses of assessment, quit rent and maramath and the monthly and annual expenses and secondly to purchase properties therewith were to provide income only for the aforesaid charity. The words “for the aforesaid charity” are of important significance. The entire accumulation was for the charity. The provisions regarding maintenance and education were subordinate to the provisions for meeting the expenses of the Utsavam. The matter does not rest there. The provisions regardingmaintenance andeducation were to be at the sole discretion of the trustees who could stop the same if the trustees were not willing. This power of trustees to stop maintenance and education expenses is a complete negation of the appellants contention that the intention of the settlor was that education and maintenance expenses were the dominant purpose of the settlement. The reason is obvious. The dominant object is never allowed by the settlor to be repelled by a discretion conferred on the trustees to stop such expenses. This power to stop is consistent with the intention of the settlor to treat the education and maintenance expenses as secondly objects only after the primary purpose of the trust, namely, charities are fulfilled. The tenor of the document points to the inescapable conclusion that the pre-dominant and overwhelming intention of the settlor was to benefit the charities and provide for the same not only by making the expenses for the charities as the first and foremost direction but also by providing for accumulation of income and purchase of properties out of the said accumulated income only for the purpose of charities.6. A contention was raised by the appellant that the High Court should not have reversed the finding of the trial Court for the payment of maintenance of the appellant at Rs. 50 per mensem. The High Court came to the conclusion that there was no legal principle to sustain this increase in maintenance. In this Court the contention which was raised in the High Court was repeated, viz., that this was a case where the cy-pres doctrine would apply. The cy-pres doctrine applies where a charitable trust is initially impossible or impracticable and the Court applies the property cy-pres, viz., to some other charities as nearly as possible, resembling the original trust. In the present case, the maintenance and education expenses are neither charitable trusts nor similar objects of charity.7.
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In the background of these provisions,counsel for the appellant contended that the dominant intention was a provision by way of a settlement for the members of the family and that the charities were subsidiary purposes to the said deed oftrust. The provisions or direction to the trustees first to accumulate the income after meeting the expenses of assessment, quit rent and maramath and the monthly and annual expenses and secondly to purchase properties therewith were to provide income only for the aforesaid charity. The wordsare of important significance. The entire accumulation was for the charity. The provisions regarding maintenance and education were subordinate to the provisions for meeting the expenses of the Utsavam. The matter does not rest there. The provisions regardingmaintenance andeducation were to be at the sole discretion of the trustees who could stop the same if the trustees were not willing. This power of trustees to stop maintenance and education expenses is a complete negation of the appellants contention that the intention of the settlor was that education and maintenance expenses were the dominant purpose of the settlement. The reason is obvious. The dominant object is never allowed by the settlor to be repelled by a discretion conferred on the trustees to stop such expenses. This power to stop is consistent with the intention of the settlor to treat the education and maintenance expenses as secondly objects only after the primary purpose of the trust, namely, charities are fulfilled. The tenor of the document points to the inescapable conclusion that theand overwhelming intention of the settlor was to benefit the charities and provide for the same not only by making the expenses for the charities as the first and foremost direction but also by providing for accumulation of income and purchase of properties out of the said accumulated income only for the purpose ofn was raised by the appellant that the High Court should not have reversed the finding of the trial Court for the payment of maintenance of the appellant at Rs. 50 per mensem.The High Court came to the conclusion that there was no legal principle to sustain this increase in maintenance. In this Court the contention which was raised in the High Court was repeated, viz., that this was a case where thedoctrine would apply. Thedoctrine applies where a charitable trust is initially impossible or impracticable and the Court applies the propertyviz., to some other charities as nearly as possible, resembling the original trust. In the present case, the maintenance and education expenses are neither charitable trusts nor similar objects of charity.
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Saroj & Others Vs. Het Lal & Others | repeating the findings given by the Tribunal including a finding that the offending vehicle owned by respondent No.2 and allegedly driven by respondent No.1 was not involved in the accident at all. 9. Shri Balakrishnan, learned senior Counsel appearing on behalf of the appellants pointed out firstly that both the Courts below have totally failed to apply their mind to the pleadings and that has resulted in grave miscarriage of justice. He pointed out that the involvement of the Tata 207 vehicle owned by respondent No.2 in this very accident was an admitted fact which was admitted in pleadings and as such both the Courts below were wholly unjustified in holding that the said vehicle was not involved in the accident and that it was a hit and run case. The learned Counsel urged that the finding that this was a hit and run case where the vehicle, Tata 207 was not involved was a mere imagination on the part of the Tribunal which even the High Court failed to note. The learned Counsel urged that in fact it was an admitted position that respondent No.1 was being prosecuted for causing the accident and death while he was driving the very same vehicle. The learned Counsel further urged that there was nothing unnatural in the evidence of Virender Singh and merely because his statement was recorded later on, that by itself was no reason to dis-believe the evidence as he was a totally dis-interested witness. The learned Counsel also pointed out that non- examination of Dhani Ram was also of no consequence for the simple reason that police indeed found that the accident had taken place wherein the said vehicle, Tata 207 was involved on the one hand and the motorcycle driven by Joginder Singh on the other. The learned Counsel, therefore, pointed out that the judgments of the Courts below could not be sustained. 10. On the other hand, Shri S.L.Gupta, learned Counsel appearing on behalf of respondent No.3, Insurance Company tried to support the findings and also admitted that even if this was a case of hit and run accident, even then the appellants were liable to be paid the no-fault liability under Section 161 of the Motor Vehicles Act which admittedly was not paid to them.11. Shri Gagan Gupta, learned Counsel appearing on behalf of respondent No.1, driver, however, denied that any accident had ever taken place or that the driver was involved in any accident. Respondent No.2, however, did not choose to come before us. 12. On considering the rival arguments, it must be said that the petition could not have been dismissed in totality. Presuming it to be a hit and run case, the appellants were entitled to at least Rs.25,000/- as per the provisions of Section 161 (3) (a) of the Motor Vehicles Act. Therefore, both the Courts below have obviously failed to note this provision. But that is not the end of the matter. In our opinion, both the Courts below have completely erred in giving the finding that it was a hit and run case and that the concerned vehicle belonging to respondent No.2 was not involved in the accident. Insofar as that finding is concerned, it was an admitted position in the pleadings of respondent No.2 that firstly, the Tata 207 vehicle bearing registration No. HR-38-L/6592 was involved in an accident with the motorcycle bearing registration No.HR-26-P/9413 which took place on 16.9.2005 at 3.30 p.m. and secondly, the said vehicle was being driven by respondent No.1. This admission in the pleadings which we have quoted in the order was itself sufficient to hold that the concerned vehicle belonging to respondent No.2 was involved in the accident. This admission was never traversed by respondent No.2 and, thus, there was no occasion to hold that the said vehicle was not involved and that it was a hit and run case. It is surprising that not only the Tribunal but the High Court also should have ignored the vital admission on the part of respondent No.2. It was nobodys case that this admission of respondent No.2 was in collusion between respondent No.2 and appellants. Once this position is clear, there is no occasion for holding that the vehicle was not involved in the accident and on that count exonerating the three respondents.13. In strict sense, this admission may not be binding vis-à-vis respondent No.1, the driver, who continued to take a stand that vehicle being driven by him was not involved in the accident. This defence of respondent No.1 is understandable as admittedly he is facing the prosecution for causing the accident and the death thereby of deceased Joginder Singh on 16.9.2005 at 3.30 p.m.14. Shri Gupta, learned Counsel could not dispute the written statement, copy of which is filed before us and the fact that there was an admission by respondent No.2 that the vehicle belonging to him was involved in an accident.15. It is obvious that both the Courts below have failed to note this fact. The judgments, therefore, would have to be set aside and the matter would have to be remitted back to the Tribunal to decide the liability of the respondents on account of the accident caused by Tata vehicle No.207 bearing registration No. HR-38-L/6592 with motorcycle bearing registration No.HR-26-P/9413 and the death of Joginder Singh in the same. It was tried to be feebly argued that under any circumstances, the negligence was only on the part of the motorcyclist and there will be no question of any compensation on that count. We are afraid, we cannot appreciate this. The Tribunal has not considered the matter from this angle. It is for this reason that we are inclined to remand the matter back to the Tribunal only on the question of liability for compensation on the part of respondent Nos. 1, 2 and 3. The matter is pending for the last five years. It is an admitted position that the appellants have not received any compensation up till now. | 1[ds]12. On considering the rival arguments, it must be said that the petition could not have been dismissed in totality. Presuming it to be a hit and run case, the appellants were entitled to at least Rs.25,000/as per the provisions of Section 161 (3) (a) of the Motor Vehicles Act. Therefore, both the Courts below have obviously failed to note this provision. But that is not the end of the matter. In our opinion, both the Courts below have completely erred in giving the finding that it was a hit and run case and that the concerned vehicle belonging to respondent No.2 was not involved in the accident. Insofar as that finding is concerned, it was an admitted position in the pleadings of respondent No.2 that firstly, the Tata 207 vehicle bearing registration No.was involved in an accident with the motorcycle bearing registrationwhich took place on 16.9.2005 at 3.30 p.m. and secondly, the said vehicle was being driven by respondent No.1. This admission in the pleadings which we have quoted in the order was itself sufficient to hold that the concerned vehicle belonging to respondent No.2 was involved in the accident. This admission was never traversed by respondent No.2 and, thus, there was no occasion to hold that the said vehicle was not involved and that it was a hit and run case. It is surprising that not only the Tribunal but the High Court also should have ignored the vital admission on the part of respondent No.2. It was nobodys case that this admission of respondent No.2 was in collusion between respondent No.2 and appellants. Once this position is clear, there is no occasion for holding that the vehicle was not involved in the accident and on that count exonerating the three respondents.13. In strict sense, this admission may not be bindingrespondent No.1, the driver, who continued to take a stand that vehicle being driven by him was not involved in the accident. This defence of respondent No.1 is understandable as admittedly he is facing the prosecution for causing the accident and the death thereby of deceased Joginder Singh on 16.9.2005 at 3.30 p.m.14. Shri Gupta, learned Counsel could not dispute the written statement, copy of which is filed before us and the fact that there was an admission by respondent No.2 that the vehicle belonging to him was involved in an accident.15. It is obvious that both the Courts below have failed to note this fact. The judgments, therefore, would have to be set aside and the matter would have to be remitted back to the Tribunal to decide the liability of the respondents on account of the accident caused by Tata vehicle No.207 bearing registration No.with motorcycle bearing registrationand the death of Joginder Singh in the same. It was tried to be feebly argued that under any circumstances, the negligence was only on the part of the motorcyclist and there will be no question of any compensation on that count. We are afraid, we cannot appreciate this. The Tribunal has not considered the matter from this angle. It is for this reason that we are inclined to remand the matter back to the Tribunal only on the question of liability for compensation on the part of respondent Nos. 1, 2 and 3. The matter is pending for the last five years. It is an admitted position that the appellants have not received any compensation up till now | 1 | 2,407 | 622 | ### 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:
repeating the findings given by the Tribunal including a finding that the offending vehicle owned by respondent No.2 and allegedly driven by respondent No.1 was not involved in the accident at all. 9. Shri Balakrishnan, learned senior Counsel appearing on behalf of the appellants pointed out firstly that both the Courts below have totally failed to apply their mind to the pleadings and that has resulted in grave miscarriage of justice. He pointed out that the involvement of the Tata 207 vehicle owned by respondent No.2 in this very accident was an admitted fact which was admitted in pleadings and as such both the Courts below were wholly unjustified in holding that the said vehicle was not involved in the accident and that it was a hit and run case. The learned Counsel urged that the finding that this was a hit and run case where the vehicle, Tata 207 was not involved was a mere imagination on the part of the Tribunal which even the High Court failed to note. The learned Counsel urged that in fact it was an admitted position that respondent No.1 was being prosecuted for causing the accident and death while he was driving the very same vehicle. The learned Counsel further urged that there was nothing unnatural in the evidence of Virender Singh and merely because his statement was recorded later on, that by itself was no reason to dis-believe the evidence as he was a totally dis-interested witness. The learned Counsel also pointed out that non- examination of Dhani Ram was also of no consequence for the simple reason that police indeed found that the accident had taken place wherein the said vehicle, Tata 207 was involved on the one hand and the motorcycle driven by Joginder Singh on the other. The learned Counsel, therefore, pointed out that the judgments of the Courts below could not be sustained. 10. On the other hand, Shri S.L.Gupta, learned Counsel appearing on behalf of respondent No.3, Insurance Company tried to support the findings and also admitted that even if this was a case of hit and run accident, even then the appellants were liable to be paid the no-fault liability under Section 161 of the Motor Vehicles Act which admittedly was not paid to them.11. Shri Gagan Gupta, learned Counsel appearing on behalf of respondent No.1, driver, however, denied that any accident had ever taken place or that the driver was involved in any accident. Respondent No.2, however, did not choose to come before us. 12. On considering the rival arguments, it must be said that the petition could not have been dismissed in totality. Presuming it to be a hit and run case, the appellants were entitled to at least Rs.25,000/- as per the provisions of Section 161 (3) (a) of the Motor Vehicles Act. Therefore, both the Courts below have obviously failed to note this provision. But that is not the end of the matter. In our opinion, both the Courts below have completely erred in giving the finding that it was a hit and run case and that the concerned vehicle belonging to respondent No.2 was not involved in the accident. Insofar as that finding is concerned, it was an admitted position in the pleadings of respondent No.2 that firstly, the Tata 207 vehicle bearing registration No. HR-38-L/6592 was involved in an accident with the motorcycle bearing registration No.HR-26-P/9413 which took place on 16.9.2005 at 3.30 p.m. and secondly, the said vehicle was being driven by respondent No.1. This admission in the pleadings which we have quoted in the order was itself sufficient to hold that the concerned vehicle belonging to respondent No.2 was involved in the accident. This admission was never traversed by respondent No.2 and, thus, there was no occasion to hold that the said vehicle was not involved and that it was a hit and run case. It is surprising that not only the Tribunal but the High Court also should have ignored the vital admission on the part of respondent No.2. It was nobodys case that this admission of respondent No.2 was in collusion between respondent No.2 and appellants. Once this position is clear, there is no occasion for holding that the vehicle was not involved in the accident and on that count exonerating the three respondents.13. In strict sense, this admission may not be binding vis-à-vis respondent No.1, the driver, who continued to take a stand that vehicle being driven by him was not involved in the accident. This defence of respondent No.1 is understandable as admittedly he is facing the prosecution for causing the accident and the death thereby of deceased Joginder Singh on 16.9.2005 at 3.30 p.m.14. Shri Gupta, learned Counsel could not dispute the written statement, copy of which is filed before us and the fact that there was an admission by respondent No.2 that the vehicle belonging to him was involved in an accident.15. It is obvious that both the Courts below have failed to note this fact. The judgments, therefore, would have to be set aside and the matter would have to be remitted back to the Tribunal to decide the liability of the respondents on account of the accident caused by Tata vehicle No.207 bearing registration No. HR-38-L/6592 with motorcycle bearing registration No.HR-26-P/9413 and the death of Joginder Singh in the same. It was tried to be feebly argued that under any circumstances, the negligence was only on the part of the motorcyclist and there will be no question of any compensation on that count. We are afraid, we cannot appreciate this. The Tribunal has not considered the matter from this angle. It is for this reason that we are inclined to remand the matter back to the Tribunal only on the question of liability for compensation on the part of respondent Nos. 1, 2 and 3. The matter is pending for the last five years. It is an admitted position that the appellants have not received any compensation up till now.
### Response:
1
### Explanation:
12. On considering the rival arguments, it must be said that the petition could not have been dismissed in totality. Presuming it to be a hit and run case, the appellants were entitled to at least Rs.25,000/as per the provisions of Section 161 (3) (a) of the Motor Vehicles Act. Therefore, both the Courts below have obviously failed to note this provision. But that is not the end of the matter. In our opinion, both the Courts below have completely erred in giving the finding that it was a hit and run case and that the concerned vehicle belonging to respondent No.2 was not involved in the accident. Insofar as that finding is concerned, it was an admitted position in the pleadings of respondent No.2 that firstly, the Tata 207 vehicle bearing registration No.was involved in an accident with the motorcycle bearing registrationwhich took place on 16.9.2005 at 3.30 p.m. and secondly, the said vehicle was being driven by respondent No.1. This admission in the pleadings which we have quoted in the order was itself sufficient to hold that the concerned vehicle belonging to respondent No.2 was involved in the accident. This admission was never traversed by respondent No.2 and, thus, there was no occasion to hold that the said vehicle was not involved and that it was a hit and run case. It is surprising that not only the Tribunal but the High Court also should have ignored the vital admission on the part of respondent No.2. It was nobodys case that this admission of respondent No.2 was in collusion between respondent No.2 and appellants. Once this position is clear, there is no occasion for holding that the vehicle was not involved in the accident and on that count exonerating the three respondents.13. In strict sense, this admission may not be bindingrespondent No.1, the driver, who continued to take a stand that vehicle being driven by him was not involved in the accident. This defence of respondent No.1 is understandable as admittedly he is facing the prosecution for causing the accident and the death thereby of deceased Joginder Singh on 16.9.2005 at 3.30 p.m.14. Shri Gupta, learned Counsel could not dispute the written statement, copy of which is filed before us and the fact that there was an admission by respondent No.2 that the vehicle belonging to him was involved in an accident.15. It is obvious that both the Courts below have failed to note this fact. The judgments, therefore, would have to be set aside and the matter would have to be remitted back to the Tribunal to decide the liability of the respondents on account of the accident caused by Tata vehicle No.207 bearing registration No.with motorcycle bearing registrationand the death of Joginder Singh in the same. It was tried to be feebly argued that under any circumstances, the negligence was only on the part of the motorcyclist and there will be no question of any compensation on that count. We are afraid, we cannot appreciate this. The Tribunal has not considered the matter from this angle. It is for this reason that we are inclined to remand the matter back to the Tribunal only on the question of liability for compensation on the part of respondent Nos. 1, 2 and 3. The matter is pending for the last five years. It is an admitted position that the appellants have not received any compensation up till now
|
Ranendra Narayan Sinha & Ors Vs. State Of West Bengal | near the Sadr Stations of the several Magistrates or Joint Magistrates, or such as may intersect the chief military routes or other much frequented roads or such as from special considerations it may appear advisable to place under the more immediate management of the Magistrates and Joint Magistrates.Second. The Government reserves to itself the power of determining from time to time what ferries shall be under the preceding rule be deemed public ferries and as such shall be subject to the immediate control of the Magistrates and Joint Magistratesx x x xThird. It will be the duty of the several Magistrates and Joint Magistrates to prepare lists of the ferries which in their judgment should under the foregoing rules be considered to be public ferries, and transmit them as soon as prepared through the Superintendents of Police for the information and orders of Government."Clause IV dealt with the power of appointing proper persons to the charge of the public ferries, for the purpose of regulating the number and description of boats to be maintained for preventing executions and generally for promoting the efficiency of the Police and the safety and convenience of the community. Clause VI declared that the exclusive right to ply public ferries shall belong to Government and no version shall be allowed to employ a ferry boat plying for hire without the previous sanction of the Magistrate. The other clauses dealt with the procedure and powers of the Magistrate with regard to public ferries. This Regulation dealt with the power of the Government of Bengal to declare a particular ferry to be a public ferry and to manage it. There is nothing in the Regulation which excludes the jurisdiction of the Civil Court in the matter of revenue qua a private ferry resumed or acquired.20. Regulation VI of 1819 was repealed by Act 1 of 1866. By Section 2 of Act 1 of 1866 it was provided that every ferry which has been or may be declared to be a public ferry under the provisions of Regulation VI of 1819 shall belong exclusively to the Government. By Section 4 it was provided that all claims for compensation which may be preferred by any person or persons for loss which may be sustained by them in consequence of any ferry having been declared public, as aforesaid shall be inquired into by such Magistrate, who shall award compensation to any such person or persons who may appear justly entitled thereto. But Act 1 of 1866 has no application because the ferries of plaintiffs predecessor were resumed by the Government between the years 1857 and 1860. In any case there is nothing to show in any of the provisions to which our attention. was invited that a suit for abatement of revenue for resumption of the ferries is excluded from the jurisdiction of the Civil Court.21. In Secretary of State for India in Council v. Maharajadhiraja Kameshwar Singh Bahadur. (1936) ILR 15 Pat 246 = (AIR 1936 Pat 87 ) on which Counsel for the State relied it was held by the High Court of Patna that the jurisdiction of the Civil Court was barred by implication in respect of a suit filed on the ground that compensation awarded was inadequate and was based on wrong principle. That case has, in our judgment no bearing in the present case. The method for determining the compensation is provided by Act 1 of 1885 and the Civil Courts jurisdiction to determine compensation pro tanto may be deemed excluded.22. Reliance was also placed upon Rule 159 in the Bengal Tauzi Manual, 1940, which contains rules for the collection of and accounting for land revenue and cesses in Bengal. Rule159 insofar as it is relevant. provided:"The power of sanctioning abatement of the revenue or rent demand of an estate during the currency of a settlement will be exercised by Collectors, Commissioners, and the Board of Revenue as shown below:-x x x x"The diverse clauses of Rule 159 vested power in different classes of officers to sanction abatement of rent or revenue. For instance, the Collector had power to sanction abatement of rent or revenue up to a total of Rs. 1,500/- in a single year in all estates managed direct by the Provincial Government: the Commissioner had power to sanction abatement of revenue upto Rs. 5,000/-. Again the Collector had power to sanction abatement of revenue in temporarily-settled estates bearing a revenue not exceeding Rs. 500/-. It was also stated that the Collector had power to sanction in all estates abatements in consequence of the acquisition of land under the Land Acquisition Act 1 of 1894, and the Board of Revenue alone had power to sanction abatements due to diluvion ascertained after a survey conducted under Act IX of 1847. The Board alone had power to sanction abatement of rent or revenue in other cases not specified in Rule 159. The Bengal Tauzi Manual, 1940 does not disclose the authority under which it was published, and the sanction behind the rules. The Board of Revenue from time to time published instructions relating to the administration of revenue laws. The rules and instructions set out in the Manual are apparently not statutory. Even as summing that they are statutory there is nothing to indicate that they exclude the jurisdiction of the Civil Court in respect of matters relating to abatement of revenue in the civil suits and as rightly conceded by counsel for the State of West Bengal, there is no evidence that any such Rule like Rule 159 was in operation at the time when the ferries belonging to the Zamindar were resumed or acquired by the Government of the Province of Bengal.23. S. K. Sen. J., was, in our judgment, in error in holding that the Civil Court had no jurisdiction to enterain the claim for abatement of revenue and for a declaration that the plaintiff was not liable to pay revenue in respect of the ferries which were resumed by the Government. | 1[ds]Two matters appear clear on the findings of the Trial Court and confirmed by the High Court: (1) that the revenue in respect of the 11 ferries was separately assessed; and (2) that the right to ferry was recognised as a right to property for resumption of which the Government of the day was liable to pay compensation. The ferries were appurtenant to the lands of the Zamindar each ferry being a connecting link between two highways on the lands of the plaintiffs predecessors. The right to the ferries was resumed by the Government in exercise of the power conferred by Regulation VI of 1819 and the right of the Zamindar to receive compensation for loss of the ferry right was conceded. But on the resumption of the ferries no abatement of revenue payable in respect of the ferries was granted. The result was somewhat anomalous.Whereas the ferries in respect of which the revenue was separately payable were taken over by the Government by compulsory acquisition or by resumption, the Zamindar still remained liable to pay the revenue assessed thereon.argument that a larger compensation was paid and on that account the plaintiff was not entitled to abatement of revenue appealed to the High Court. But, in our judgment the record of the case does not support the conclusion reached by the High Court.It is clear that originally it was proposed to resume only one or some but not all the eleven ferries, and abate the revenue by Rs.Later it was decided to resume all the ferries in Huda Alaipur and to pay compensation at ten times the amount of profit determined "on the basis of one years working of the ferries" after they were takenthe argument proceeds upon several assumptions which are not supported by evidencc. There is no evidence that the plaintiffs predecessors were making only Rs. 5,392/gross (income) out of the ferries. It cannot be assumed that because the Government collected from the 11 ferries Rs. 5,392/in the first year after the ferries were taken over and the Zamindar was liable to pay Rs. 4,800/only.15. There is nothing in the correspondence to indicate that any part of the compensation was to include the capitalised value for abatement of revenue. The ferries were regarded as assets belonging to the Zamindari and were separately assessed to revenue. It was but just that the revenue assessed upon the ferries should, to the extent of resumption or acquisition of ferries, be abated. In the absence of any evidence to prove that the Government took into account the value of abatement of revenue and the Zamindar agreed to receive compensation, agreeing still to pay the revenue in respect of the ferries resumed, the conclusion inevitably follows that on the resumption or acquisition of the ferries the Zamindar ceased to be liable to pay the annual revenue assessed upon the ferries.16. There is no evidence of a written claim made by the Zamindar for abatement of revenue since 1860, and we are unable to infer from that circumstance anything adverse to the plaintiff. For many years, the Pargana was in the possession of the Court of Wards and it is the case of the plaintiff that from time to time requests were made for abatement of revenue, but no relief was given and the revenue including the revenue from the ferries was recovered from the Zamindar under threat of coercive process. No inference from the delay in making a claim for abatement of revenue arises.17. The High Court was of the view that the claim made by the plaintiff was barred by the law of limitation. The plaintiff was claiming in this suit the amount of revenue recovered from him in excess of the amount lawfully due from him and he claimed a declaration that the revenue stood abated. Right to collect revenue which is not due cannot be acquired by prescription, and if the plaintiff had been compelled to pay sums of money which he was not liable to pay the claim could properly be made within three years from the date on which the payment was made. The Trial Court was, in our judgment, right in holding that an amount of Rs. 14,440/was properly recoverable. The Trial Court was also right in declaring that there was complete extinction of liability to pay revenue in respect of the 11 ferries. To the claim for declaration of the right to abatement there is, in our judgment, no bar of limitation. Each demand for recovery by the Government confers a fresh cause of action. In any event, there is nothing on the record which suggests that the claim for abatement was refused, before theis undisputed that there is no express bar under any of the statutes to the maintainability of the present suit, nor is our attention invited to any provisions of law or circumstances which may justify an inference to that effect.There is nothing in the Regulation which excludes the jurisdiction of the Civil Court in the matter of revenue qua a private ferry resumed orcase has, in our judgment no bearing in the present case. The method for determining the compensation is provided by Act 1 of 1885 and the Civil Courts jurisdiction to determine compensation pro tanto may be deemed excluded.The rules and instructions set out in the Manual are apparently not statutory. Even as summing that they are statutory there is nothing to indicate that they exclude the jurisdiction of the Civil Court in respect of matters relating to abatement of revenue in the civil suits and as rightly conceded by counsel for the State of West Bengal, there is no evidence that any such Rule like Rule 159 was in operation at the time when the ferries belonging to the Zamindar were resumed or acquired by the Government of the Province of Bengal.23. S. K. Sen. J., was, in our judgment, in error in holding that the Civil Court had no jurisdiction to enterain the claim for abatement of revenue and for a declaration that the plaintiff was not liable to pay revenue in respect of the ferries which were resumed by the Government. | 1 | 5,609 | 1,093 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
near the Sadr Stations of the several Magistrates or Joint Magistrates, or such as may intersect the chief military routes or other much frequented roads or such as from special considerations it may appear advisable to place under the more immediate management of the Magistrates and Joint Magistrates.Second. The Government reserves to itself the power of determining from time to time what ferries shall be under the preceding rule be deemed public ferries and as such shall be subject to the immediate control of the Magistrates and Joint Magistratesx x x xThird. It will be the duty of the several Magistrates and Joint Magistrates to prepare lists of the ferries which in their judgment should under the foregoing rules be considered to be public ferries, and transmit them as soon as prepared through the Superintendents of Police for the information and orders of Government."Clause IV dealt with the power of appointing proper persons to the charge of the public ferries, for the purpose of regulating the number and description of boats to be maintained for preventing executions and generally for promoting the efficiency of the Police and the safety and convenience of the community. Clause VI declared that the exclusive right to ply public ferries shall belong to Government and no version shall be allowed to employ a ferry boat plying for hire without the previous sanction of the Magistrate. The other clauses dealt with the procedure and powers of the Magistrate with regard to public ferries. This Regulation dealt with the power of the Government of Bengal to declare a particular ferry to be a public ferry and to manage it. There is nothing in the Regulation which excludes the jurisdiction of the Civil Court in the matter of revenue qua a private ferry resumed or acquired.20. Regulation VI of 1819 was repealed by Act 1 of 1866. By Section 2 of Act 1 of 1866 it was provided that every ferry which has been or may be declared to be a public ferry under the provisions of Regulation VI of 1819 shall belong exclusively to the Government. By Section 4 it was provided that all claims for compensation which may be preferred by any person or persons for loss which may be sustained by them in consequence of any ferry having been declared public, as aforesaid shall be inquired into by such Magistrate, who shall award compensation to any such person or persons who may appear justly entitled thereto. But Act 1 of 1866 has no application because the ferries of plaintiffs predecessor were resumed by the Government between the years 1857 and 1860. In any case there is nothing to show in any of the provisions to which our attention. was invited that a suit for abatement of revenue for resumption of the ferries is excluded from the jurisdiction of the Civil Court.21. In Secretary of State for India in Council v. Maharajadhiraja Kameshwar Singh Bahadur. (1936) ILR 15 Pat 246 = (AIR 1936 Pat 87 ) on which Counsel for the State relied it was held by the High Court of Patna that the jurisdiction of the Civil Court was barred by implication in respect of a suit filed on the ground that compensation awarded was inadequate and was based on wrong principle. That case has, in our judgment no bearing in the present case. The method for determining the compensation is provided by Act 1 of 1885 and the Civil Courts jurisdiction to determine compensation pro tanto may be deemed excluded.22. Reliance was also placed upon Rule 159 in the Bengal Tauzi Manual, 1940, which contains rules for the collection of and accounting for land revenue and cesses in Bengal. Rule159 insofar as it is relevant. provided:"The power of sanctioning abatement of the revenue or rent demand of an estate during the currency of a settlement will be exercised by Collectors, Commissioners, and the Board of Revenue as shown below:-x x x x"The diverse clauses of Rule 159 vested power in different classes of officers to sanction abatement of rent or revenue. For instance, the Collector had power to sanction abatement of rent or revenue up to a total of Rs. 1,500/- in a single year in all estates managed direct by the Provincial Government: the Commissioner had power to sanction abatement of revenue upto Rs. 5,000/-. Again the Collector had power to sanction abatement of revenue in temporarily-settled estates bearing a revenue not exceeding Rs. 500/-. It was also stated that the Collector had power to sanction in all estates abatements in consequence of the acquisition of land under the Land Acquisition Act 1 of 1894, and the Board of Revenue alone had power to sanction abatements due to diluvion ascertained after a survey conducted under Act IX of 1847. The Board alone had power to sanction abatement of rent or revenue in other cases not specified in Rule 159. The Bengal Tauzi Manual, 1940 does not disclose the authority under which it was published, and the sanction behind the rules. The Board of Revenue from time to time published instructions relating to the administration of revenue laws. The rules and instructions set out in the Manual are apparently not statutory. Even as summing that they are statutory there is nothing to indicate that they exclude the jurisdiction of the Civil Court in respect of matters relating to abatement of revenue in the civil suits and as rightly conceded by counsel for the State of West Bengal, there is no evidence that any such Rule like Rule 159 was in operation at the time when the ferries belonging to the Zamindar were resumed or acquired by the Government of the Province of Bengal.23. S. K. Sen. J., was, in our judgment, in error in holding that the Civil Court had no jurisdiction to enterain the claim for abatement of revenue and for a declaration that the plaintiff was not liable to pay revenue in respect of the ferries which were resumed by the Government.
### Response:
1
### Explanation:
the 11 ferries was separately assessed; and (2) that the right to ferry was recognised as a right to property for resumption of which the Government of the day was liable to pay compensation. The ferries were appurtenant to the lands of the Zamindar each ferry being a connecting link between two highways on the lands of the plaintiffs predecessors. The right to the ferries was resumed by the Government in exercise of the power conferred by Regulation VI of 1819 and the right of the Zamindar to receive compensation for loss of the ferry right was conceded. But on the resumption of the ferries no abatement of revenue payable in respect of the ferries was granted. The result was somewhat anomalous.Whereas the ferries in respect of which the revenue was separately payable were taken over by the Government by compulsory acquisition or by resumption, the Zamindar still remained liable to pay the revenue assessed thereon.argument that a larger compensation was paid and on that account the plaintiff was not entitled to abatement of revenue appealed to the High Court. But, in our judgment the record of the case does not support the conclusion reached by the High Court.It is clear that originally it was proposed to resume only one or some but not all the eleven ferries, and abate the revenue by Rs.Later it was decided to resume all the ferries in Huda Alaipur and to pay compensation at ten times the amount of profit determined "on the basis of one years working of the ferries" after they were takenthe argument proceeds upon several assumptions which are not supported by evidencc. There is no evidence that the plaintiffs predecessors were making only Rs. 5,392/gross (income) out of the ferries. It cannot be assumed that because the Government collected from the 11 ferries Rs. 5,392/in the first year after the ferries were taken over and the Zamindar was liable to pay Rs. 4,800/only.15. There is nothing in the correspondence to indicate that any part of the compensation was to include the capitalised value for abatement of revenue. The ferries were regarded as assets belonging to the Zamindari and were separately assessed to revenue. It was but just that the revenue assessed upon the ferries should, to the extent of resumption or acquisition of ferries, be abated. In the absence of any evidence to prove that the Government took into account the value of abatement of revenue and the Zamindar agreed to receive compensation, agreeing still to pay the revenue in respect of the ferries resumed, the conclusion inevitably follows that on the resumption or acquisition of the ferries the Zamindar ceased to be liable to pay the annual revenue assessed upon the ferries.16. There is no evidence of a written claim made by the Zamindar for abatement of revenue since 1860, and we are unable to infer from that circumstance anything adverse to the plaintiff. For many years, the Pargana was in the possession of the Court of Wards and it is the case of the plaintiff that from time to time requests were made for abatement of revenue, but no relief was given and the revenue including the revenue from the ferries was recovered from the Zamindar under threat of coercive process. No inference from the delay in making a claim for abatement of revenue arises.17. The High Court was of the view that the claim made by the plaintiff was barred by the law of limitation. The plaintiff was claiming in this suit the amount of revenue recovered from him in excess of the amount lawfully due from him and he claimed a declaration that the revenue stood abated. Right to collect revenue which is not due cannot be acquired by prescription, and if the plaintiff had been compelled to pay sums of money which he was not liable to pay the claim could properly be made within three years from the date on which the payment was made. The Trial Court was, in our judgment, right in holding that an amount of Rs. 14,440/was properly recoverable. The Trial Court was also right in declaring that there was complete extinction of liability to pay revenue in respect of the 11 ferries. To the claim for declaration of the right to abatement there is, in our judgment, no bar of limitation. Each demand for recovery by the Government confers a fresh cause of action. In any event, there is nothing on the record which suggests that the claim for abatement was refused, before theis undisputed that there is no express bar under any of the statutes to the maintainability of the present suit, nor is our attention invited to any provisions of law or circumstances which may justify an inference to that effect.There is nothing in the Regulation which excludes the jurisdiction of the Civil Court in the matter of revenue qua a private ferry resumed orcase has, in our judgment no bearing in the present case. The method for determining the compensation is provided by Act 1 of 1885 and the Civil Courts jurisdiction to determine compensation pro tanto may be deemed excluded.The rules and instructions set out in the Manual are apparently not statutory. Even as summing that they are statutory there is nothing to indicate that they exclude the jurisdiction of the Civil Court in respect of matters relating to abatement of revenue in the civil suits and as rightly conceded by counsel for the State of West Bengal, there is no evidence that any such Rule like Rule 159 was in operation at the time when the ferries belonging to the Zamindar were resumed or acquired by the Government of the Province of Bengal.23. S. K. Sen. J., was, in our judgment, in error in holding that the Civil Court had no jurisdiction to enterain the claim for abatement of revenue and for a declaration that the plaintiff was not liable to pay revenue in respect of the ferries which were resumed by the Government.
|
Commissioner of Income-Tax-12, Mumbai Vs. Jayant H. Modi | 1. This appeal of the revenue challenges the order passed by the Income Tax Appellate Tribunal, Mumbai dated 23rd November, 2012. The assessment year is 2006-07.2. The assessees appeal has been allowed by the Tribunal and that is why the revenue being aggrieved is before us.3. Mr. Suresh Kumar submits that the questions of law framed at pages 3 and 4 are substantial questions and, therefore, the appeal deserves to be admitted. He submits that the Tribunal has erred in interfering with the finding of fact recorded by the assessing officer and the Commissioner of Income Tax (Appeals), being the first appellate authority. The Tribunal could not have applied section 2(22)(e)(ii) of the Income Tax Act, 1961, because, loans and advances were obtained from M/s. JMC Securities Pvt. Ltd. but money lending was not a substantial part of the business of that company. In other words, lending of money was not a substantial part of the business of M/s. JMC Securities Pvt. Ltd. from whom loan was obtained by the assessee. The Commissioner had observed that M/s. JMC Securities Pvt. Ltd. was advancing money only to one entity, namely, M/s. Sonal investment. Rest of the sums were advanced to the employees of M/s. JMC Securities Pvt. Ltd., therefore, the exclusionary clause was not applicable and reliance placed on the judgment of this Court in the case of CIT v. Parle Plastics Ltd. [2011] 332 ITR 63 /196 Taxman 62 /[2010] 8 taxmann.com 155 was entirely misplaced.4. We have perused the appeal paper-book with the assistance of Mr. Suresh Kumar, learned counsel appearing for the revenue and Mr. Pardiwalla, learned senior counsel appearing for the assessee. We have also perused that part of the Commissioners order where he observes that M/s. JMC Securities Pvt. Ltd. was not in the business of lending money nor lending of money is a substantial part of the business of the Company. Further, the company advanced loans to only to M/s. Sonal Investment and its employees.5. However, while the Tribunal was deciding the appeal, it referred to all the material and held that during the year under consideration, the assessee received loans of Rs. 551.45 lakhs from M/s. JMC Securities Pvt. Ltd. wherein he was holding 1,53,025 equity shares out of total 3 lakhs equity shares issued. The assessee was beneficial owner of shares in the said company holding more than 10% shares and if that company had accumulated profits of Rs. 3,38,85,459/- as on 31st March, 2006, the assessing officer called upon the assessee who is respondent before us to explain as to why the loan amount to the above extent should not be brought to tax in his hands as deemed dividend under section 2(22)(e) of the Income Tax Act, 1961.6. In reply, the assessee contended that the main object of M/s. JMC Securities Pvt. Ltd. was to carry on business as share and stock brokers but its memorandum of association allowed the company to carry on business inter alia of lending or advancing money.7. The Tribunal also referred to the assessment order in the case of M/s. JMC Securities Pvt. Ltd. for the year under consideration, namely 2006-07, wherein the nature of the business of that company was indicated as finance. The company continued in the business of short term finance of idle funds. M/s. JMC Securities Pvt. Ltd. During the year under consideration, earned interest income to the tune of Rs. 9,16,088/- which constituted about 70% of its total business income amounting to Rs. 13,04,088/-. The maximum amount of loan advanced by the company during the year under consideration was to the tune of Rs. 95,45,000/-. That constituted 32% of the total funds available with the said company. In these circumstances, the Tribunal concluded that that the lending of money is a substantial part of the business of M/s. JMC Securities Pvt. Ltd. The addition made by the assessing officer and sustained by the Commissioner was not valid and legal, particularly in the background facts. In the light of the undisputed factual position, we are of the view that the Tribunals order is correct and reliance placed by it on the Division Bench judgment of this Court is not misplaced.8. So far as question (B) on page 4 is concerned, it is stated that this question is covered against the revenue by the Division Bench of this Court in the case of Godrej & Boyce Mfg. Co. Ltd. v. Dy. CIT [2010] 328 ITR 81 /194 Taxman 203 . In any event, direction to recompute the disallowance in the light of this judgment does not give rise to a substantial question of law. In these circumstances, the order impugned cannot be termed as perverse and the finding of fact which is consistent with the factual material placed on record, does not raise any substantial questions of law. | 0[ds]In these circumstances, the Tribunal concluded that that the lending of money is a substantial part of the business of M/s. JMC Securities Pvt. Ltd. The addition made by the assessing officer and sustained by the Commissioner was not valid and legal, particularly in the background facts. In the light of the undisputed factual position, we are of the view that the Tribunals order is correct and reliance placed by it on the Division Bench judgment of this Court is not misplaced.8. So far as question (B) on page 4 is concerned, it is stated that this question is covered against the revenue by the Division Bench of this Court in the case of Godrej & Boyce Mfg. Co. Ltd. v. Dy. CIT [2010] 328 ITR 81 /194 Taxman 203 . In any event, direction to recompute the disallowance in the light of this judgment does not give rise to a substantial question of law. In these circumstances, the order impugned cannot be termed as perverse and the finding of fact which is consistent with the factual material placed on record, does not raise any substantial questions of law. | 0 | 923 | 214 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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1. This appeal of the revenue challenges the order passed by the Income Tax Appellate Tribunal, Mumbai dated 23rd November, 2012. The assessment year is 2006-07.2. The assessees appeal has been allowed by the Tribunal and that is why the revenue being aggrieved is before us.3. Mr. Suresh Kumar submits that the questions of law framed at pages 3 and 4 are substantial questions and, therefore, the appeal deserves to be admitted. He submits that the Tribunal has erred in interfering with the finding of fact recorded by the assessing officer and the Commissioner of Income Tax (Appeals), being the first appellate authority. The Tribunal could not have applied section 2(22)(e)(ii) of the Income Tax Act, 1961, because, loans and advances were obtained from M/s. JMC Securities Pvt. Ltd. but money lending was not a substantial part of the business of that company. In other words, lending of money was not a substantial part of the business of M/s. JMC Securities Pvt. Ltd. from whom loan was obtained by the assessee. The Commissioner had observed that M/s. JMC Securities Pvt. Ltd. was advancing money only to one entity, namely, M/s. Sonal investment. Rest of the sums were advanced to the employees of M/s. JMC Securities Pvt. Ltd., therefore, the exclusionary clause was not applicable and reliance placed on the judgment of this Court in the case of CIT v. Parle Plastics Ltd. [2011] 332 ITR 63 /196 Taxman 62 /[2010] 8 taxmann.com 155 was entirely misplaced.4. We have perused the appeal paper-book with the assistance of Mr. Suresh Kumar, learned counsel appearing for the revenue and Mr. Pardiwalla, learned senior counsel appearing for the assessee. We have also perused that part of the Commissioners order where he observes that M/s. JMC Securities Pvt. Ltd. was not in the business of lending money nor lending of money is a substantial part of the business of the Company. Further, the company advanced loans to only to M/s. Sonal Investment and its employees.5. However, while the Tribunal was deciding the appeal, it referred to all the material and held that during the year under consideration, the assessee received loans of Rs. 551.45 lakhs from M/s. JMC Securities Pvt. Ltd. wherein he was holding 1,53,025 equity shares out of total 3 lakhs equity shares issued. The assessee was beneficial owner of shares in the said company holding more than 10% shares and if that company had accumulated profits of Rs. 3,38,85,459/- as on 31st March, 2006, the assessing officer called upon the assessee who is respondent before us to explain as to why the loan amount to the above extent should not be brought to tax in his hands as deemed dividend under section 2(22)(e) of the Income Tax Act, 1961.6. In reply, the assessee contended that the main object of M/s. JMC Securities Pvt. Ltd. was to carry on business as share and stock brokers but its memorandum of association allowed the company to carry on business inter alia of lending or advancing money.7. The Tribunal also referred to the assessment order in the case of M/s. JMC Securities Pvt. Ltd. for the year under consideration, namely 2006-07, wherein the nature of the business of that company was indicated as finance. The company continued in the business of short term finance of idle funds. M/s. JMC Securities Pvt. Ltd. During the year under consideration, earned interest income to the tune of Rs. 9,16,088/- which constituted about 70% of its total business income amounting to Rs. 13,04,088/-. The maximum amount of loan advanced by the company during the year under consideration was to the tune of Rs. 95,45,000/-. That constituted 32% of the total funds available with the said company. In these circumstances, the Tribunal concluded that that the lending of money is a substantial part of the business of M/s. JMC Securities Pvt. Ltd. The addition made by the assessing officer and sustained by the Commissioner was not valid and legal, particularly in the background facts. In the light of the undisputed factual position, we are of the view that the Tribunals order is correct and reliance placed by it on the Division Bench judgment of this Court is not misplaced.8. So far as question (B) on page 4 is concerned, it is stated that this question is covered against the revenue by the Division Bench of this Court in the case of Godrej & Boyce Mfg. Co. Ltd. v. Dy. CIT [2010] 328 ITR 81 /194 Taxman 203 . In any event, direction to recompute the disallowance in the light of this judgment does not give rise to a substantial question of law. In these circumstances, the order impugned cannot be termed as perverse and the finding of fact which is consistent with the factual material placed on record, does not raise any substantial questions of law.
### Response:
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### Explanation:
In these circumstances, the Tribunal concluded that that the lending of money is a substantial part of the business of M/s. JMC Securities Pvt. Ltd. The addition made by the assessing officer and sustained by the Commissioner was not valid and legal, particularly in the background facts. In the light of the undisputed factual position, we are of the view that the Tribunals order is correct and reliance placed by it on the Division Bench judgment of this Court is not misplaced.8. So far as question (B) on page 4 is concerned, it is stated that this question is covered against the revenue by the Division Bench of this Court in the case of Godrej & Boyce Mfg. Co. Ltd. v. Dy. CIT [2010] 328 ITR 81 /194 Taxman 203 . In any event, direction to recompute the disallowance in the light of this judgment does not give rise to a substantial question of law. In these circumstances, the order impugned cannot be termed as perverse and the finding of fact which is consistent with the factual material placed on record, does not raise any substantial questions of law.
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Akoijam Ranbir Singh Vs. Government of Manipur | was thus known to them and the others from the very beginning. Dorendro Singh and Raghumani Singh also reached the hospital, and Sanajoba Singh (PW 2) has stated that after Ibohal Singh was declared dead, he narrated the incident to them and said that the culprit was the appellant. That was another occasion when even according to Sanajoba Singh, the name of the assailant was disclose in unmistakable terms. Dorendro Singh has corroborated this part of the statement of Sanajoba Singh for he has stated that on his inquiry as to who caused the injuries to Ibohal Singh Sanajoba Singh replied that the appellant gave the blows with a "thang" on the road near Pratap Talkies.7. It will be remembered that it was Dorendro Singh who went to Ibotan Singh (PW 1) to inform him about the incident. By that time he knew the name of the assailant. The Sessions Judge cannot therefore be said to be unreasonable in taking the view that if the name of the appellant had really been disclosed by Sanajoba Singh. Ibotan Singh himself reached the hospital as soon as he learnt about the incident from Dorendro Singh, and we have it from Sanajoba Singh that Ibotan Singh and others had come to him soon after, near the emergency room. There could be no reason why Sanajoba Singh would not have told Ibotan Singh about the name of the person who had inflicted the fatal injuries on the deceased, and the Sessions Judge cannot be said to be unreasonable if he attached importance to the fact that, even so, the name of the appellant was significantly omitted from the first information report which was lodged by Ibotan Singh soon after, and, on the other had, it was stated that the offence had been committed by somebody and the culprits may be arrested and dealt with.8. The above were significant infirmities in the prosecution case and it cannot be said that the Sessions Judge was not justified in noticing them.9. The other point which was noticed by the Sessions Judge was that there was a discrepancy in the evidence of the prosecution about the place of incident, and bloodstains were not found in the verandah of Bharat Shoe House or nearabout it even though Ibohal Singh was said to be standing near the second pillar of the verandah at the time of incident. This infirmity is also there in the prosecution evidence. There is the further fact that although bloodstains were noticed at three places in the bazar, the evidence of the prosecution dies not offer any explanation why the blood fell at three places.10. It has been argued by Mr. Kohli, on behalf of the State of Manipur, that the appellant was not able to explain why Sanajoba Singh (PW 2) should have deposed against him falsely, as there was no enmity between him and Sanajoba Singh, Dorendro Singh and Raghumani Singh. The argument is futile because, as has been stated, it was the case of the prosecution all through that Sanajoba Singh had been given fist blows on the face by the appellant and his associate a little before the incident and the appellant had threatened him again just before the incident. Dorendro Singh and Raghumani Singh were admittedly friends of Sanajoba Singh and the argument is therefore quite unconvincing.11. It has also been argued by Mr. Kohli that the statement of Sanajoba Singh has been corroborated by the medical evidence inasmuch as two stab wounds were found on the person of the deceased, and bloodstains were found on the road. Reference in this connection has been made to Lyons "Medical Jurisprudence" to show that a person could run about a hundred yards even after an injury in the heart region. It has been argued that if Sanajoba Singh had not been an eyewitness, he would not have ventured to state that a chase was given by the deceased to the appellant for there was evidence to show that he had been stabbed in the heart. This is however a farfetched arguments and it is possible that Sanajoba Singh stated about the chase as it was found that blood was lying at three places on the road. Our attention has also been invited to Sanajoba Singhs statement that it was he who rat to the help of Ibohal Singh soon after he was stabbed by the appellant, and it has been urged that was sufficient to prove his present at the time of the incident. We find however that Sanajoba Singh admitted in the trial Court that he had stated in the court of the committing Magistrate that it was not only he but Nimai Singh and some other persons who attended on Ibohal Singh When he fell down. The witness disowned that statement, but he could not give any satisfactory explanation for the discrepancy.12. The Judicial Commissioner has attached considerable considerable importance to the absence of the appellant from his house and has taken the view that the omission of the name of the eyewitness and the accused from the first information report was a minor matter because it was not lodged by an eyewitness but by Ibotan Singh who was 73 years old. The Judicial Commissioner has tried to explain the discrepancy regarding the place of the incident also. There can be no doubt however that, for reasons stated by us, it could not be said that the finding reached by the Sessions Judge was unreasonable, so as to require interference in appeal. It may be that the Judicial Commissioner has found it possible to arrive at a different conclusion on the basis of the materiel on the record. It may also be that the evidence was sufficient to as has been held by this Court in Mathai Mathews v. State of Maharashtra ((1970) 3 SCC 772 ), that court not justify a reversal of the finding of acquittal which was based on a proper appreciation of the evidence on the record. | 1[ds]11. It has also been argued by Mr. Kohli that the statement of Sanajoba Singh has been corroborated by the medical evidence inasmuch as two stab wounds were found on the person of the deceased, and bloodstains were found on the road. Reference in this connection has been made to Lyons "Medical Jurisprudence" to show that a person could run about a hundred yards even after an injury in the heart region. It has been argued that if Sanajoba Singh had not been an eyewitness, he would not have ventured to state that a chase was given by the deceased to the appellant for there was evidence to show that he had been stabbed in the heart. This is however a farfetched arguments and it is possible that Sanajoba Singh stated about the chase as it was found that blood was lying at three places on the road. Our attention has also been invited to Sanajoba Singhs statement that it was he who rat to the help of Ibohal Singh soon after he was stabbed by the appellant, and it has been urged that was sufficient to prove his present at the time of the incident. We find however that Sanajoba Singh admitted in the trial Court that he had stated in the court of the committing Magistrate that it was not only he but Nimai Singh and some other persons who attended on Ibohal Singh When he fell down. The witness disowned that statement, but he could not give any satisfactory explanation for the discrepancy.12. The Judicial Commissioner has attached considerable considerable importance to the absence of the appellant from his house and has taken the view that the omission of the name of the eyewitness and the accused from the first information report was a minor matter because it was not lodged by an eyewitness but by Ibotan Singh who was 73 years old. The Judicial Commissioner has tried to explain the discrepancy regarding the place of the incident also. There can be no doubt however that, for reasons stated by us, it could not be said that the finding reached by the Sessions Judge was unreasonable, so as to require interference in appeal. It may be that the Judicial Commissioner has found it possible to arrive at a different conclusion on the basis of the materiel on the record. It may also be that the evidence was sufficient to as has been held by this Court in Mathai Mathews v. State of Maharashtra ((1970) 3 SCC 772 ), that court not justify a reversal of the finding of acquittal which was based on a proper appreciation of the evidence on the record. | 1 | 3,189 | 475 | ### 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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was thus known to them and the others from the very beginning. Dorendro Singh and Raghumani Singh also reached the hospital, and Sanajoba Singh (PW 2) has stated that after Ibohal Singh was declared dead, he narrated the incident to them and said that the culprit was the appellant. That was another occasion when even according to Sanajoba Singh, the name of the assailant was disclose in unmistakable terms. Dorendro Singh has corroborated this part of the statement of Sanajoba Singh for he has stated that on his inquiry as to who caused the injuries to Ibohal Singh Sanajoba Singh replied that the appellant gave the blows with a "thang" on the road near Pratap Talkies.7. It will be remembered that it was Dorendro Singh who went to Ibotan Singh (PW 1) to inform him about the incident. By that time he knew the name of the assailant. The Sessions Judge cannot therefore be said to be unreasonable in taking the view that if the name of the appellant had really been disclosed by Sanajoba Singh. Ibotan Singh himself reached the hospital as soon as he learnt about the incident from Dorendro Singh, and we have it from Sanajoba Singh that Ibotan Singh and others had come to him soon after, near the emergency room. There could be no reason why Sanajoba Singh would not have told Ibotan Singh about the name of the person who had inflicted the fatal injuries on the deceased, and the Sessions Judge cannot be said to be unreasonable if he attached importance to the fact that, even so, the name of the appellant was significantly omitted from the first information report which was lodged by Ibotan Singh soon after, and, on the other had, it was stated that the offence had been committed by somebody and the culprits may be arrested and dealt with.8. The above were significant infirmities in the prosecution case and it cannot be said that the Sessions Judge was not justified in noticing them.9. The other point which was noticed by the Sessions Judge was that there was a discrepancy in the evidence of the prosecution about the place of incident, and bloodstains were not found in the verandah of Bharat Shoe House or nearabout it even though Ibohal Singh was said to be standing near the second pillar of the verandah at the time of incident. This infirmity is also there in the prosecution evidence. There is the further fact that although bloodstains were noticed at three places in the bazar, the evidence of the prosecution dies not offer any explanation why the blood fell at three places.10. It has been argued by Mr. Kohli, on behalf of the State of Manipur, that the appellant was not able to explain why Sanajoba Singh (PW 2) should have deposed against him falsely, as there was no enmity between him and Sanajoba Singh, Dorendro Singh and Raghumani Singh. The argument is futile because, as has been stated, it was the case of the prosecution all through that Sanajoba Singh had been given fist blows on the face by the appellant and his associate a little before the incident and the appellant had threatened him again just before the incident. Dorendro Singh and Raghumani Singh were admittedly friends of Sanajoba Singh and the argument is therefore quite unconvincing.11. It has also been argued by Mr. Kohli that the statement of Sanajoba Singh has been corroborated by the medical evidence inasmuch as two stab wounds were found on the person of the deceased, and bloodstains were found on the road. Reference in this connection has been made to Lyons "Medical Jurisprudence" to show that a person could run about a hundred yards even after an injury in the heart region. It has been argued that if Sanajoba Singh had not been an eyewitness, he would not have ventured to state that a chase was given by the deceased to the appellant for there was evidence to show that he had been stabbed in the heart. This is however a farfetched arguments and it is possible that Sanajoba Singh stated about the chase as it was found that blood was lying at three places on the road. Our attention has also been invited to Sanajoba Singhs statement that it was he who rat to the help of Ibohal Singh soon after he was stabbed by the appellant, and it has been urged that was sufficient to prove his present at the time of the incident. We find however that Sanajoba Singh admitted in the trial Court that he had stated in the court of the committing Magistrate that it was not only he but Nimai Singh and some other persons who attended on Ibohal Singh When he fell down. The witness disowned that statement, but he could not give any satisfactory explanation for the discrepancy.12. The Judicial Commissioner has attached considerable considerable importance to the absence of the appellant from his house and has taken the view that the omission of the name of the eyewitness and the accused from the first information report was a minor matter because it was not lodged by an eyewitness but by Ibotan Singh who was 73 years old. The Judicial Commissioner has tried to explain the discrepancy regarding the place of the incident also. There can be no doubt however that, for reasons stated by us, it could not be said that the finding reached by the Sessions Judge was unreasonable, so as to require interference in appeal. It may be that the Judicial Commissioner has found it possible to arrive at a different conclusion on the basis of the materiel on the record. It may also be that the evidence was sufficient to as has been held by this Court in Mathai Mathews v. State of Maharashtra ((1970) 3 SCC 772 ), that court not justify a reversal of the finding of acquittal which was based on a proper appreciation of the evidence on the record.
### Response:
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### Explanation:
11. It has also been argued by Mr. Kohli that the statement of Sanajoba Singh has been corroborated by the medical evidence inasmuch as two stab wounds were found on the person of the deceased, and bloodstains were found on the road. Reference in this connection has been made to Lyons "Medical Jurisprudence" to show that a person could run about a hundred yards even after an injury in the heart region. It has been argued that if Sanajoba Singh had not been an eyewitness, he would not have ventured to state that a chase was given by the deceased to the appellant for there was evidence to show that he had been stabbed in the heart. This is however a farfetched arguments and it is possible that Sanajoba Singh stated about the chase as it was found that blood was lying at three places on the road. Our attention has also been invited to Sanajoba Singhs statement that it was he who rat to the help of Ibohal Singh soon after he was stabbed by the appellant, and it has been urged that was sufficient to prove his present at the time of the incident. We find however that Sanajoba Singh admitted in the trial Court that he had stated in the court of the committing Magistrate that it was not only he but Nimai Singh and some other persons who attended on Ibohal Singh When he fell down. The witness disowned that statement, but he could not give any satisfactory explanation for the discrepancy.12. The Judicial Commissioner has attached considerable considerable importance to the absence of the appellant from his house and has taken the view that the omission of the name of the eyewitness and the accused from the first information report was a minor matter because it was not lodged by an eyewitness but by Ibotan Singh who was 73 years old. The Judicial Commissioner has tried to explain the discrepancy regarding the place of the incident also. There can be no doubt however that, for reasons stated by us, it could not be said that the finding reached by the Sessions Judge was unreasonable, so as to require interference in appeal. It may be that the Judicial Commissioner has found it possible to arrive at a different conclusion on the basis of the materiel on the record. It may also be that the evidence was sufficient to as has been held by this Court in Mathai Mathews v. State of Maharashtra ((1970) 3 SCC 772 ), that court not justify a reversal of the finding of acquittal which was based on a proper appreciation of the evidence on the record.
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J.J.Irani Vs. State Of Jharkhand | Here the Inspector was himself part of the team, which conducted the preliminary inquiry between 5th and 6th March, 1989. As observed earlier, the inquiry is a detailed investigation going into all aspects of the occurrence. In these circumstances it is not possible to hold that the Inspector of Factories, who undertook a detailed inquiry into the accident along with the Chief Inspector of Factories, remained ignorant that the offences in question have been allegedly committed. It is proper to assume that an officer, conducting an investigation, comes to know what has happened, that being the only purpose of the investigation.16. We find that it has not been disputed at any stage that the complainant was not associated with and did not participate in the preliminary investigation from 5th to 6th March 1989 along with the Chief Inspector of Factories. This is obvious from the letter/report of preliminary investigation dated 08.03.1989. The Inspector must be taken as having acquired knowledge of the alleged commission of the offence soon before or at least on 08.03.1989, when the report of preliminary investigation was sent to the Commissioner of Labour, Bihar. In fact, a perusal of allegations of the offence against the appellants, makes it clear that an inquiry or investigation at the site of the accident was not necessary in order to gain knowledge of the alleged breach. For instance, the failure to submit ?Plans of Pandals and Structures? as required under Section 6(1)(aa) of the Act read with Rule 8 of the Bihar Factory Rules, 1950; not drawing up an ?on-sight? Emergency Plan and Disaster Control for the Pandals and Structures as required under Section 41B(4) of the Factories (Amendment) Act, 1987 are alleged breaches, which could have been ascertained even from the office record of the Inspector. The third breach is not taking precautions in case of fire as envisaged under Section 38 of the Factories Act, 1948 read with Rule 62 of the Bihar Factories Rules, 1950 or providing a safe means of escape in the event of fire for all persons, and providing necessary equipment and facilities for extinguishing fire, can be easily and must have been ascertained at the first inspection of the site. We are clearly of the view that it was not necessary for the Inspector to have waited to receive the report on 23.04.1990 from the Government under cover of the letter dated 21.04.1990 directing him to file a complaint for the prosecution of the appellants. We thus agree with the view of the learned Chief Judicial Magistrate, Jamshedpur and disagree with the view of the High Court. 17. Mr. Tapesh Kumar Singh, learned counsel appearing for the State/respondent pointed out that whilst these Criminal Revision Petitions against the judgments of the Chief Judicial Magistrate in the three criminal cases were pending in the High Court, Writ Petition 232 of 1991 was filed under Article 32 of the Constitution of India against State of Bihar, TISCO and its directors and officers to which the Inspector of Factories, Jamshedpur was also a party. This Writ Petition was filed by victims on behalf of themselves and all other persons affected by the fire. A prayer was made in the Writ of Mandamus ordering prosecution of Directors and Officers of TISCO for negligence in organizing of the function. A prayer for appropriate compensation was also made in the said Writ Petition. By Preliminary Order dated 15.12.1993, this Court after laying down certain principles of compensation directed that the retired Chief Justice Mr. Chandrachud should determine the compensation. It was then directed as follows: ?Pending further orders, the following criminal cases shall be stayed:?1. G.R. Case No. : 365-A/89 pending in the Court of Sub-Divisional Magistrate, Jamshedpur.2. Crl. Rev. Nos. 212, 213 and 214 of 1991 pending before Ranchi Bench of the Patna High Court.? 18. Chief Justice Chandrachud (Retd.) eventually assessed the compensation in November, 2000 for an aggregate sum of Rs.5.47 crores. Finally, this Court disposed of the Writ Petition on 16.8.2001 [reported as (2001) 8 SCC 197 ] after observing that Criminal Revision Petitions had been stayed by its earlier Order dated 15.12.1993. This Court then enhanced the aggregated compensation amount by adding a certain amount on compassionate grounds. The Writ Petition was accordingly disposed of.19. It was argued by Mr. Tapesh Kumar Singh that the above sequence of events meant that the Criminal Revisions before the High Court remained stayed notwithstanding the disposal of the Writ Petition under Article 32 of the Constitution, and therefore, it could not have proceeded to decide the matter. We fail to understand this submission coming from the State. In the first place, there is no warrant for assuming, unless specifically directed or necessarily intended, that an interim order such as the Stay of proceedings before a lower forum continues even if the proceedings in the higher forum is disposed of. This Court has made observations to that effect in PremChandra Agarwal and Another v. Uttar Pradesh Financial Corporation and Others, (2009) 11 SCC 479. In any case, in this case the parties understood that the true position was that the Stay had ceased to operate and argued the matter on that understanding before the High Court. What is more surprising is that this contention comes from the State, which has succeeded before the High Court.Accordingly, we see no reason whatsoever to consider this submission any further. We are informed that in pursuance of the Order of this Court in LataWadhwa and Others v. State of Bihar and Others, (2001) 8 SCC 197 the TISCO has deposited an amount of Rs. 6.95 crores in the Registry of the Supreme Court. Shri F.S. Nariman, learned senior counsel, appearing for the appellants has very fairly submitted that the appellants and TISCO have no grievance whatsoever in making any payment to the victims by way of compensation since the accident was a terrible tragedy. Shri Nariman submitted that the TISCO has not treated any litigation in this matter as an adversarial litigation. | 1[ds]15. We have heard the matter and considered the issue at length and we find ourselves unable to uphold the reasoning of the High Court. Jambekar?scase (supra) is of no assistance in deciding the present case. In that case this Court accepted that from a reading of the report of the incident it was difficult for anyone to come to the conclusion that an offence under Section 21(1)(iv)(c) has been committed. The Inspector?s statement that the report did not convey to him any knowledge that the offence was committed was accepted and this Court concluded that the Inspector did not acquire the knowledge of the ‘commission of the offence? when he received the report. The case before us is entirely different. Here the Inspector was himself part of the team, which conducted the preliminary inquiry between 5th and 6th March, 1989. As observed earlier, the inquiry is a detailed investigation going into all aspects of the occurrence. In these circumstances it is not possible to hold that the Inspector of Factories, who undertook a detailed inquiry into the accident along with the Chief Inspector of Factories, remained ignorant that the offences in question have been allegedly committed. It is proper to assume that an officer, conducting an investigation, comes to know what has happened, that being the only purpose of the investigation.16. We find that it has not been disputed at any stage that the complainant was not associated with and did not participate in the preliminary investigation from 5th to 6th March 1989 along with the Chief Inspector of Factories. This is obvious from the letter/report of preliminary investigation dated 08.03.1989. The Inspector must be taken as having acquired knowledge of the alleged commission of the offence soon before or at least on 08.03.1989, when the report of preliminary investigation was sent to the Commissioner of Labour, Bihar. In fact, a perusal of allegations of the offence against the appellants, makes it clear that an inquiry or investigation at the site of the accident was not necessary in order to gain knowledge of the alleged breach. For instance, the failure to submit ?Plans of Pandals and Structures? as required under Section 6(1)(aa) of the Act read with Rule 8 of the Bihar Factory Rules, 1950; not drawing up an ?on-sight? Emergency Plan and Disaster Control for the Pandals and Structures as required under Section 41B(4) of the Factories (Amendment) Act, 1987 are alleged breaches, which could have been ascertained even from the office record of the Inspector. The third breach is not taking precautions in case of fire as envisaged under Section 38 of the Factories Act, 1948 read with Rule 62 of the Bihar Factories Rules, 1950 or providing a safe means of escape in the event of fire for all persons, and providing necessary equipment and facilities for extinguishing fire, can be easily and must have been ascertained at the first inspection of the site. We are clearly of the view that it was not necessary for the Inspector to have waited to receive the report on 23.04.1990 from the Government under cover of the letter dated 21.04.1990 directing him to file a complaint for the prosecution of the appellants. We thus agree with the view of the learned Chief Judicial Magistrate, Jamshedpur and disagree with the view of the Highwe see no reason whatsoever to consider this submission any further. We are informed that in pursuance of the Order of this Court in LataWadhwa and Others v. State of Bihar and Others, (2001) 8 SCC 197 the TISCO has deposited an amount of Rs. 6.95 crores in the Registry of the Supreme Court. Shri F.S. Nariman, learned senior counsel, appearing for the appellants has very fairly submitted that the appellants and TISCO have no grievance whatsoever in making any payment to the victims by way of compensation since the accident was a terrible tragedy. Shri Nariman submitted that the TISCO has not treated any litigation in this matter as an adversarial litigation. | 1 | 3,592 | 752 | ### 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:
Here the Inspector was himself part of the team, which conducted the preliminary inquiry between 5th and 6th March, 1989. As observed earlier, the inquiry is a detailed investigation going into all aspects of the occurrence. In these circumstances it is not possible to hold that the Inspector of Factories, who undertook a detailed inquiry into the accident along with the Chief Inspector of Factories, remained ignorant that the offences in question have been allegedly committed. It is proper to assume that an officer, conducting an investigation, comes to know what has happened, that being the only purpose of the investigation.16. We find that it has not been disputed at any stage that the complainant was not associated with and did not participate in the preliminary investigation from 5th to 6th March 1989 along with the Chief Inspector of Factories. This is obvious from the letter/report of preliminary investigation dated 08.03.1989. The Inspector must be taken as having acquired knowledge of the alleged commission of the offence soon before or at least on 08.03.1989, when the report of preliminary investigation was sent to the Commissioner of Labour, Bihar. In fact, a perusal of allegations of the offence against the appellants, makes it clear that an inquiry or investigation at the site of the accident was not necessary in order to gain knowledge of the alleged breach. For instance, the failure to submit ?Plans of Pandals and Structures? as required under Section 6(1)(aa) of the Act read with Rule 8 of the Bihar Factory Rules, 1950; not drawing up an ?on-sight? Emergency Plan and Disaster Control for the Pandals and Structures as required under Section 41B(4) of the Factories (Amendment) Act, 1987 are alleged breaches, which could have been ascertained even from the office record of the Inspector. The third breach is not taking precautions in case of fire as envisaged under Section 38 of the Factories Act, 1948 read with Rule 62 of the Bihar Factories Rules, 1950 or providing a safe means of escape in the event of fire for all persons, and providing necessary equipment and facilities for extinguishing fire, can be easily and must have been ascertained at the first inspection of the site. We are clearly of the view that it was not necessary for the Inspector to have waited to receive the report on 23.04.1990 from the Government under cover of the letter dated 21.04.1990 directing him to file a complaint for the prosecution of the appellants. We thus agree with the view of the learned Chief Judicial Magistrate, Jamshedpur and disagree with the view of the High Court. 17. Mr. Tapesh Kumar Singh, learned counsel appearing for the State/respondent pointed out that whilst these Criminal Revision Petitions against the judgments of the Chief Judicial Magistrate in the three criminal cases were pending in the High Court, Writ Petition 232 of 1991 was filed under Article 32 of the Constitution of India against State of Bihar, TISCO and its directors and officers to which the Inspector of Factories, Jamshedpur was also a party. This Writ Petition was filed by victims on behalf of themselves and all other persons affected by the fire. A prayer was made in the Writ of Mandamus ordering prosecution of Directors and Officers of TISCO for negligence in organizing of the function. A prayer for appropriate compensation was also made in the said Writ Petition. By Preliminary Order dated 15.12.1993, this Court after laying down certain principles of compensation directed that the retired Chief Justice Mr. Chandrachud should determine the compensation. It was then directed as follows: ?Pending further orders, the following criminal cases shall be stayed:?1. G.R. Case No. : 365-A/89 pending in the Court of Sub-Divisional Magistrate, Jamshedpur.2. Crl. Rev. Nos. 212, 213 and 214 of 1991 pending before Ranchi Bench of the Patna High Court.? 18. Chief Justice Chandrachud (Retd.) eventually assessed the compensation in November, 2000 for an aggregate sum of Rs.5.47 crores. Finally, this Court disposed of the Writ Petition on 16.8.2001 [reported as (2001) 8 SCC 197 ] after observing that Criminal Revision Petitions had been stayed by its earlier Order dated 15.12.1993. This Court then enhanced the aggregated compensation amount by adding a certain amount on compassionate grounds. The Writ Petition was accordingly disposed of.19. It was argued by Mr. Tapesh Kumar Singh that the above sequence of events meant that the Criminal Revisions before the High Court remained stayed notwithstanding the disposal of the Writ Petition under Article 32 of the Constitution, and therefore, it could not have proceeded to decide the matter. We fail to understand this submission coming from the State. In the first place, there is no warrant for assuming, unless specifically directed or necessarily intended, that an interim order such as the Stay of proceedings before a lower forum continues even if the proceedings in the higher forum is disposed of. This Court has made observations to that effect in PremChandra Agarwal and Another v. Uttar Pradesh Financial Corporation and Others, (2009) 11 SCC 479. In any case, in this case the parties understood that the true position was that the Stay had ceased to operate and argued the matter on that understanding before the High Court. What is more surprising is that this contention comes from the State, which has succeeded before the High Court.Accordingly, we see no reason whatsoever to consider this submission any further. We are informed that in pursuance of the Order of this Court in LataWadhwa and Others v. State of Bihar and Others, (2001) 8 SCC 197 the TISCO has deposited an amount of Rs. 6.95 crores in the Registry of the Supreme Court. Shri F.S. Nariman, learned senior counsel, appearing for the appellants has very fairly submitted that the appellants and TISCO have no grievance whatsoever in making any payment to the victims by way of compensation since the accident was a terrible tragedy. Shri Nariman submitted that the TISCO has not treated any litigation in this matter as an adversarial litigation.
### Response:
1
### Explanation:
15. We have heard the matter and considered the issue at length and we find ourselves unable to uphold the reasoning of the High Court. Jambekar?scase (supra) is of no assistance in deciding the present case. In that case this Court accepted that from a reading of the report of the incident it was difficult for anyone to come to the conclusion that an offence under Section 21(1)(iv)(c) has been committed. The Inspector?s statement that the report did not convey to him any knowledge that the offence was committed was accepted and this Court concluded that the Inspector did not acquire the knowledge of the ‘commission of the offence? when he received the report. The case before us is entirely different. Here the Inspector was himself part of the team, which conducted the preliminary inquiry between 5th and 6th March, 1989. As observed earlier, the inquiry is a detailed investigation going into all aspects of the occurrence. In these circumstances it is not possible to hold that the Inspector of Factories, who undertook a detailed inquiry into the accident along with the Chief Inspector of Factories, remained ignorant that the offences in question have been allegedly committed. It is proper to assume that an officer, conducting an investigation, comes to know what has happened, that being the only purpose of the investigation.16. We find that it has not been disputed at any stage that the complainant was not associated with and did not participate in the preliminary investigation from 5th to 6th March 1989 along with the Chief Inspector of Factories. This is obvious from the letter/report of preliminary investigation dated 08.03.1989. The Inspector must be taken as having acquired knowledge of the alleged commission of the offence soon before or at least on 08.03.1989, when the report of preliminary investigation was sent to the Commissioner of Labour, Bihar. In fact, a perusal of allegations of the offence against the appellants, makes it clear that an inquiry or investigation at the site of the accident was not necessary in order to gain knowledge of the alleged breach. For instance, the failure to submit ?Plans of Pandals and Structures? as required under Section 6(1)(aa) of the Act read with Rule 8 of the Bihar Factory Rules, 1950; not drawing up an ?on-sight? Emergency Plan and Disaster Control for the Pandals and Structures as required under Section 41B(4) of the Factories (Amendment) Act, 1987 are alleged breaches, which could have been ascertained even from the office record of the Inspector. The third breach is not taking precautions in case of fire as envisaged under Section 38 of the Factories Act, 1948 read with Rule 62 of the Bihar Factories Rules, 1950 or providing a safe means of escape in the event of fire for all persons, and providing necessary equipment and facilities for extinguishing fire, can be easily and must have been ascertained at the first inspection of the site. We are clearly of the view that it was not necessary for the Inspector to have waited to receive the report on 23.04.1990 from the Government under cover of the letter dated 21.04.1990 directing him to file a complaint for the prosecution of the appellants. We thus agree with the view of the learned Chief Judicial Magistrate, Jamshedpur and disagree with the view of the Highwe see no reason whatsoever to consider this submission any further. We are informed that in pursuance of the Order of this Court in LataWadhwa and Others v. State of Bihar and Others, (2001) 8 SCC 197 the TISCO has deposited an amount of Rs. 6.95 crores in the Registry of the Supreme Court. Shri F.S. Nariman, learned senior counsel, appearing for the appellants has very fairly submitted that the appellants and TISCO have no grievance whatsoever in making any payment to the victims by way of compensation since the accident was a terrible tragedy. Shri Nariman submitted that the TISCO has not treated any litigation in this matter as an adversarial litigation.
|
Nazir Hoosein Vs. Darayus Bhathena | the minutes recorded by Mr. Satish Shah that before item No. 1 was taken up Mr. Bhiwandiwalla and Mr. Bhathena (respondent No. 1) stressed the need to hold an early Annual General Meeting. Another Director Mr. Swadi also suggested the same for electing a new Board which could finalise the accounts. Finally, Mr. Bhiwandiwalla suggested the following: (i) that the Accounts be finalised and approved as soon as possible. (ii) that all the members of the present Board should resign and an entirely new Board should be elected; and (iii) that in any event the Annual General Meeting should be convened as early as possible even if the Accounts were not ready. The other members were agreeable to this and it was resolved that the Annual General Meeting should if possible be held on 16th September, 1997. This also indicates that the Board desired holding an early Annual General Meeting and in favour of all members of this Board resigning. In this context presiding by respondent No. 1 as Chairman of the meeting held on 17th April, cannot be held to be proper. However, on the other hand a submission is, even where there is no Chairman or in case the Chairman not present or as in the present case it is in dispute, it is open for the Board of Directors to elect any one to function as such in any meeting. But this is neither the respondents case nor it is shown that he was elected as such on that date. His authority if at all was only through the resolution dated 8th November, 1995. Strong submission for the respondents was that appointment of respondent No. 1 as Chairman was held to be valid by a competent Court of law by order dated 18th March, 1997 in Notice of Motion No. 6337 of 1995. But this order was challenged by the appellants through A.O. No. 274 of 1997 in the High Court. It is in this extent that consent order was passed which obliterated various resolutions including of 8th November, 1995. So this submission of respondents has no force. 33. Lastly, we have considered the question of induction of 57 new life members. So far in their application no defect could be pointed out. It is true, these new life members are not parties before us. It will be in the best of interest that question of their induction as life members instead of rejecting, be placed for consideration, in the Annual General Meeting to be held by the Company. So we come to the conclusion, that meeting dated 17th April, 1997 was not only not conducted in the proper perspective but it also suffers from procedural irregularities. This was part of the tussle between the two groups to gain the majority over the other. However, it would not be proper to reject the life members application. So in order to keep the interest of the life members, we direct that their cases be placed before the next Annual General Meeting to be held for its consideration. 34. Since the dispute, as to who shall preside, is still not resolved, in spite of this long drawn litigation which can only come to an end by fresh election of the Board of Directors in the next Annual General Meeting, it is proper in the interest of the Company that neither appellant No. 1 nor respondent No. 1 presides in any board of Directors meeting. 35. Thus, so far the direction of the High Court to hold Annual General Meeting under the Chairmanship of Mr. A. P. Kothari, the Company Registrar seems to be proper, hence needs no Interference to that extent, The relevant portion of this is quoted hereunder: "However, it is clear that a meeting of the Board of Directors has been held pursuant to an order passed by this Court and it is common ground before me that the Board of Directors decided to hold the annual general meeting of the company immediately, in this view of the matter, therefore, in my opinion, it would be just and proper to direct that the Annual General Meeting of the Company should be held for holding elections to the Board of Directors of the Company. In my opinion, considering that the parties are fighting, it would be proper to direct that the Annual General Meeting should be held under the Chairmanship of Shri A. P. Kothari, the Company Registrar." 36. Hence for all the aforesaid reasons we allow the appeal of the appellants, set aside both the judgments of the High Court dated 10th February, 1999, except to the aforesaid extent, and the trial Court order dated 9th July, 1998, and further direct holding of Annual General Meeting at the earliest under the Chairmanship of Mr. A. P. Kothari, Registrar Company as aforesaid. Even if any prior meeting before Annual General Meeting is to be held of the Board of Directors, the same shall also be presided by the same Mr. A. P. Kothari, Registrar. In view of the aforesaid findings our conclusions are: (A) Neither appellant No. 1 nor respondent No. 1 shall preside in any of the meetings of the Board of Directors. (B) The appointment of 12 additional Directors cannot be sustained. Hence resolutions dated 8th November, 1997 and 29th March, 1997 and 17th April, 1997 stand obliterated in view of the consent order dated 30th June/2nd July, 1997. (C) So far resolution dated 17th April, 1997 for the induction of 57 life members, in view of our findings, they not be deemed to have been inducted on that date as member but their induction as such would be placed for consideration before the Annual General Meeting to be held later. (D) Annual General Meeting shall be held under the Chairmanship of Mr. A.P. Kothari, Registrar, Company who shall expedite the holding of Annual General Meeting at a very early date, possibly within three months of this order being communicated to him. 37. Accordingly, the aforesaid | 1[ds]In our considered opinion, the culmination of the appeal, the suit, by its withdrawal as perorder, as a consequence of the consent order indicates one and the only inference that once the parties agreed to hold a fresh meeting under theof Mr. Satish Shah tosh the agenda of the meeting dated 8th November, 1995, then it implicitly voices, what was resolved in the said meeting earlier is wiped off and has become non-est. The very re-consideration of the earlier agenda clinchingly reveals that what was done then is wiped off. How can earlier resolution dated 8th November, 1995, would survive when it is to be considered afresh? Of course, itopen to the Board to pass the same, modify or pass entirely different resolution.company would be bound by the resolution passed in this later meeting. The High Court committed error of law by concluding to the contrary. The High Court misdirected itself and misconstrueder, it is clear that a meeting of the Board ofeld pursuant to an order passed by thisand it is common ground before me that the Board ofdecided to hold theannual general meetingof the companyimmediately, in this view of the matter, therefore, in my opinion, it would be just and proper to direct that theannual general meetingof the companyheld for holding elections to the Board ofdirectors of theIn my opinion, considering that the parties are fighting, it would be proper to direct that theannual general meetingshould be held under theof Shri A. P. Kothari, the Company Registrar."for all the aforesaid reasons we allow the appeal of the appellants, set aside both the judgments of the High Court dated 10th February, 1999, except to the aforesaid extent, and the trialorder dated 9th July, 1998, and further direct holding ofannual general meetingat the earliest under theof Mr. A. P. Kothari,as aforesaid. Even if any prior meeting beforeannual general meetingis to be held of the Board ofthe same shall also be presided by the same Mr. A. P. Kothari, Registrar. | 1 | 7,720 | 371 | ### Instruction:
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### Input:
the minutes recorded by Mr. Satish Shah that before item No. 1 was taken up Mr. Bhiwandiwalla and Mr. Bhathena (respondent No. 1) stressed the need to hold an early Annual General Meeting. Another Director Mr. Swadi also suggested the same for electing a new Board which could finalise the accounts. Finally, Mr. Bhiwandiwalla suggested the following: (i) that the Accounts be finalised and approved as soon as possible. (ii) that all the members of the present Board should resign and an entirely new Board should be elected; and (iii) that in any event the Annual General Meeting should be convened as early as possible even if the Accounts were not ready. The other members were agreeable to this and it was resolved that the Annual General Meeting should if possible be held on 16th September, 1997. This also indicates that the Board desired holding an early Annual General Meeting and in favour of all members of this Board resigning. In this context presiding by respondent No. 1 as Chairman of the meeting held on 17th April, cannot be held to be proper. However, on the other hand a submission is, even where there is no Chairman or in case the Chairman not present or as in the present case it is in dispute, it is open for the Board of Directors to elect any one to function as such in any meeting. But this is neither the respondents case nor it is shown that he was elected as such on that date. His authority if at all was only through the resolution dated 8th November, 1995. Strong submission for the respondents was that appointment of respondent No. 1 as Chairman was held to be valid by a competent Court of law by order dated 18th March, 1997 in Notice of Motion No. 6337 of 1995. But this order was challenged by the appellants through A.O. No. 274 of 1997 in the High Court. It is in this extent that consent order was passed which obliterated various resolutions including of 8th November, 1995. So this submission of respondents has no force. 33. Lastly, we have considered the question of induction of 57 new life members. So far in their application no defect could be pointed out. It is true, these new life members are not parties before us. It will be in the best of interest that question of their induction as life members instead of rejecting, be placed for consideration, in the Annual General Meeting to be held by the Company. So we come to the conclusion, that meeting dated 17th April, 1997 was not only not conducted in the proper perspective but it also suffers from procedural irregularities. This was part of the tussle between the two groups to gain the majority over the other. However, it would not be proper to reject the life members application. So in order to keep the interest of the life members, we direct that their cases be placed before the next Annual General Meeting to be held for its consideration. 34. Since the dispute, as to who shall preside, is still not resolved, in spite of this long drawn litigation which can only come to an end by fresh election of the Board of Directors in the next Annual General Meeting, it is proper in the interest of the Company that neither appellant No. 1 nor respondent No. 1 presides in any board of Directors meeting. 35. Thus, so far the direction of the High Court to hold Annual General Meeting under the Chairmanship of Mr. A. P. Kothari, the Company Registrar seems to be proper, hence needs no Interference to that extent, The relevant portion of this is quoted hereunder: "However, it is clear that a meeting of the Board of Directors has been held pursuant to an order passed by this Court and it is common ground before me that the Board of Directors decided to hold the annual general meeting of the company immediately, in this view of the matter, therefore, in my opinion, it would be just and proper to direct that the Annual General Meeting of the Company should be held for holding elections to the Board of Directors of the Company. In my opinion, considering that the parties are fighting, it would be proper to direct that the Annual General Meeting should be held under the Chairmanship of Shri A. P. Kothari, the Company Registrar." 36. Hence for all the aforesaid reasons we allow the appeal of the appellants, set aside both the judgments of the High Court dated 10th February, 1999, except to the aforesaid extent, and the trial Court order dated 9th July, 1998, and further direct holding of Annual General Meeting at the earliest under the Chairmanship of Mr. A. P. Kothari, Registrar Company as aforesaid. Even if any prior meeting before Annual General Meeting is to be held of the Board of Directors, the same shall also be presided by the same Mr. A. P. Kothari, Registrar. In view of the aforesaid findings our conclusions are: (A) Neither appellant No. 1 nor respondent No. 1 shall preside in any of the meetings of the Board of Directors. (B) The appointment of 12 additional Directors cannot be sustained. Hence resolutions dated 8th November, 1997 and 29th March, 1997 and 17th April, 1997 stand obliterated in view of the consent order dated 30th June/2nd July, 1997. (C) So far resolution dated 17th April, 1997 for the induction of 57 life members, in view of our findings, they not be deemed to have been inducted on that date as member but their induction as such would be placed for consideration before the Annual General Meeting to be held later. (D) Annual General Meeting shall be held under the Chairmanship of Mr. A.P. Kothari, Registrar, Company who shall expedite the holding of Annual General Meeting at a very early date, possibly within three months of this order being communicated to him. 37. Accordingly, the aforesaid
### Response:
1
### Explanation:
In our considered opinion, the culmination of the appeal, the suit, by its withdrawal as perorder, as a consequence of the consent order indicates one and the only inference that once the parties agreed to hold a fresh meeting under theof Mr. Satish Shah tosh the agenda of the meeting dated 8th November, 1995, then it implicitly voices, what was resolved in the said meeting earlier is wiped off and has become non-est. The very re-consideration of the earlier agenda clinchingly reveals that what was done then is wiped off. How can earlier resolution dated 8th November, 1995, would survive when it is to be considered afresh? Of course, itopen to the Board to pass the same, modify or pass entirely different resolution.company would be bound by the resolution passed in this later meeting. The High Court committed error of law by concluding to the contrary. The High Court misdirected itself and misconstrueder, it is clear that a meeting of the Board ofeld pursuant to an order passed by thisand it is common ground before me that the Board ofdecided to hold theannual general meetingof the companyimmediately, in this view of the matter, therefore, in my opinion, it would be just and proper to direct that theannual general meetingof the companyheld for holding elections to the Board ofdirectors of theIn my opinion, considering that the parties are fighting, it would be proper to direct that theannual general meetingshould be held under theof Shri A. P. Kothari, the Company Registrar."for all the aforesaid reasons we allow the appeal of the appellants, set aside both the judgments of the High Court dated 10th February, 1999, except to the aforesaid extent, and the trialorder dated 9th July, 1998, and further direct holding ofannual general meetingat the earliest under theof Mr. A. P. Kothari,as aforesaid. Even if any prior meeting beforeannual general meetingis to be held of the Board ofthe same shall also be presided by the same Mr. A. P. Kothari, Registrar.
|
RANBIR ARYA Vs. THE STATE (U.T. OF CHANDIGARH) | that there must be a complaint from any customer regarding adulteration in the food article and held that the Health Authority is duly competent to conduct a raid and take sample. Further, as per the evidence on record it is clear that the Appellant has indeed sent a copy of the report of the Public Analyst. After appreciating the evidence on record, the learned Magistrate convicted the Appellant for the offence Under Section 16(1)(a)(i) read with Section 7 of the Act and sentenced the Appellant to rigorous imprisonment for a period of six months and imposed a fine of Rs. 1,000/-, in default of payment of fine, to further rigorous imprisonment for a period of two months, by order dated 03.11.2000. 5. Aggrieved by the order passed by the learned Magistrate the Appellants preferred an appeal before the Sessions Court. 6. The counsel for the Appellant would submit that there is no standard provided for the quality of the tomato soup in the Act and the sample cannot be termed as adulterated. Further, the finding in the Public Analyst report is not conclusive on the basis of the tests conducted by the Public Analyst. 7. The counsel for the Respondent would submit that as per the definition of adulteration Under Section 2(ia), the sample in question was found to be containing non-permitted colour and accordingly, the learned Magistrate has rightly convicted the Appellant. 8. The learned Sessions Judge, after hearing the parties to the lis, rejected the contentions of the Appellant and observed that as per Section 7 of the Act a person can be held liable for adulteration or misbranding of food for the purpose of sale, storage or distribution in contravention of the Act or the Rules made thereunder. As far as the standard of quality of food is concerned various rules have been framed, Appendix-B of the Prevention of Food Adulteration Rules (for short, the Rules), definition of food and standard of quality of some food items is mentioned, although tomato soup and standard of quality of the same is not mentioned in Appendix-A, notwithstanding, as per Rule 23 of the Rules addition of any colouring matter to any article of food is prohibited unless such an addition is specifically permitted in the Rules. Rule 28 provides a list of permitted synthetic food colours and Rule 29 provides the list of the food articles in which such an addition of synthetic food colours is permitted. Rule 29(g) does permit addition of permitted synthetic food colours to flavouring agents and soup powder for the period upto 31.12.1977, however, the said rule will not come in rescue of the Appellant since it is clear from his statements Under Section 313 of the Code of Criminal Procedure, 1973 that the soup was not prepared from soup powder but from tomato juice and colour was added to it. 9. The Trial Court further rejected the plea of the Appellant regarding the report of the Public Analyst being inconclusive on the ground that it is an undisputed and admitted fact by the Appellant that colour was added to the soup as is also found in the Public Analyst report and as such no further evidence is required to prove the same. The Trial Court thus rejected the contentions raised by the Appellant and upheld the order of the Chief Judicial Magistrate by its order dated 01.06.2006. 10. Aggrieved by the aforesaid order, the Appellant filed Criminal Revision before the High Court. 11. The counsel for the Appellant would submit before the High Court that as per Rule 29 usage of synthetic food colours is permitted in so far as canned tomato juice is concerned. The High Court rejected the aforesaid contention observing that the tomato juice was prepared in the restaurant itself and it was not the case that the canned tomato juice was being served. The High Court observed that there is no infirmity in the order of conviction and sentence passed by the Trial Court and accordingly dismissed the revision by order dated 05.06.2006. 12. Aggrieved by the order so passed by the High Court, the Appellant is before us in this appeal. 13. We have heard Shri N. Hariharan, learned Senior Counsel for the Appellant and learned Counsel for the Respondent. 14. The learned Senior Counsel for the Appellant would submit that as per Section 17 of the Act, the person who has been nominated Under Section 17(2) to be in charge of and responsible to the company and not the General Manager of the Company shall be liable to be proceeded against. He would further submit that mixing the additive such as in the present case is allowed under the Rules in so far as canned tomato juice is concerned and therefore by adding the same additive to tomato soup does not amount to adulteration. 15. In so far as the contention raised by the learned Senior Counsel for the Appellant regarding the General Manager not being liable to be proceeded against is concerned, the same has not been canvassed before any of the forums below and it cannot be permitted to be taken for the first time at this appellate stage. 16. Further, the contention with respect to mixing of the additive being permissible in tomato juice is concerned, the legislature has made the distinction between tomato soup and tomato juice in the Rules wherein the use of permitted synthetic food colours is restricted to the articles enumerated in the Rules. Rule 23 clearly provides that addition of a colour to any article of food except as specifically permitted by the Rules is prohibited. It is clear that tomato soup is not included in the list of food articles in which usage of such synthetic food colours is permitted and therefore addition of colour in the present case to the tomato soup was not permissible under the Act. Hence, in view of the above, we reject the contentions raised by the learned Senior Counsel for the Appellant. | 0[ds]15. In so far as the contention raised by the learned Senior Counsel for the Appellant regarding the General Manager not being liable to be proceeded against is concerned, the same has not been canvassed before any of the forums below and it cannot be permitted to be taken for the first time at this appellate stage.16. Further, the contention with respect to mixing of the additive being permissible in tomato juice is concerned, the legislature has made the distinction between tomato soup and tomato juice in the Rules wherein the use of permitted synthetic food colours is restricted to the articles enumerated in the Rules. Rule 23 clearly provides that addition of a colour to any article of food except as specifically permitted by the Rules is prohibited. It is clear that tomato soup is not included in the list of food articles in which usage of such synthetic food colours is permitted and therefore addition of colour in the present case to the tomato soup was not permissible under the Act. Hence, in view of the above, we reject the contentions raised by the learned Senior Counsel for the Appellant. | 0 | 1,531 | 208 | ### Instruction:
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that there must be a complaint from any customer regarding adulteration in the food article and held that the Health Authority is duly competent to conduct a raid and take sample. Further, as per the evidence on record it is clear that the Appellant has indeed sent a copy of the report of the Public Analyst. After appreciating the evidence on record, the learned Magistrate convicted the Appellant for the offence Under Section 16(1)(a)(i) read with Section 7 of the Act and sentenced the Appellant to rigorous imprisonment for a period of six months and imposed a fine of Rs. 1,000/-, in default of payment of fine, to further rigorous imprisonment for a period of two months, by order dated 03.11.2000. 5. Aggrieved by the order passed by the learned Magistrate the Appellants preferred an appeal before the Sessions Court. 6. The counsel for the Appellant would submit that there is no standard provided for the quality of the tomato soup in the Act and the sample cannot be termed as adulterated. Further, the finding in the Public Analyst report is not conclusive on the basis of the tests conducted by the Public Analyst. 7. The counsel for the Respondent would submit that as per the definition of adulteration Under Section 2(ia), the sample in question was found to be containing non-permitted colour and accordingly, the learned Magistrate has rightly convicted the Appellant. 8. The learned Sessions Judge, after hearing the parties to the lis, rejected the contentions of the Appellant and observed that as per Section 7 of the Act a person can be held liable for adulteration or misbranding of food for the purpose of sale, storage or distribution in contravention of the Act or the Rules made thereunder. As far as the standard of quality of food is concerned various rules have been framed, Appendix-B of the Prevention of Food Adulteration Rules (for short, the Rules), definition of food and standard of quality of some food items is mentioned, although tomato soup and standard of quality of the same is not mentioned in Appendix-A, notwithstanding, as per Rule 23 of the Rules addition of any colouring matter to any article of food is prohibited unless such an addition is specifically permitted in the Rules. Rule 28 provides a list of permitted synthetic food colours and Rule 29 provides the list of the food articles in which such an addition of synthetic food colours is permitted. Rule 29(g) does permit addition of permitted synthetic food colours to flavouring agents and soup powder for the period upto 31.12.1977, however, the said rule will not come in rescue of the Appellant since it is clear from his statements Under Section 313 of the Code of Criminal Procedure, 1973 that the soup was not prepared from soup powder but from tomato juice and colour was added to it. 9. The Trial Court further rejected the plea of the Appellant regarding the report of the Public Analyst being inconclusive on the ground that it is an undisputed and admitted fact by the Appellant that colour was added to the soup as is also found in the Public Analyst report and as such no further evidence is required to prove the same. The Trial Court thus rejected the contentions raised by the Appellant and upheld the order of the Chief Judicial Magistrate by its order dated 01.06.2006. 10. Aggrieved by the aforesaid order, the Appellant filed Criminal Revision before the High Court. 11. The counsel for the Appellant would submit before the High Court that as per Rule 29 usage of synthetic food colours is permitted in so far as canned tomato juice is concerned. The High Court rejected the aforesaid contention observing that the tomato juice was prepared in the restaurant itself and it was not the case that the canned tomato juice was being served. The High Court observed that there is no infirmity in the order of conviction and sentence passed by the Trial Court and accordingly dismissed the revision by order dated 05.06.2006. 12. Aggrieved by the order so passed by the High Court, the Appellant is before us in this appeal. 13. We have heard Shri N. Hariharan, learned Senior Counsel for the Appellant and learned Counsel for the Respondent. 14. The learned Senior Counsel for the Appellant would submit that as per Section 17 of the Act, the person who has been nominated Under Section 17(2) to be in charge of and responsible to the company and not the General Manager of the Company shall be liable to be proceeded against. He would further submit that mixing the additive such as in the present case is allowed under the Rules in so far as canned tomato juice is concerned and therefore by adding the same additive to tomato soup does not amount to adulteration. 15. In so far as the contention raised by the learned Senior Counsel for the Appellant regarding the General Manager not being liable to be proceeded against is concerned, the same has not been canvassed before any of the forums below and it cannot be permitted to be taken for the first time at this appellate stage. 16. Further, the contention with respect to mixing of the additive being permissible in tomato juice is concerned, the legislature has made the distinction between tomato soup and tomato juice in the Rules wherein the use of permitted synthetic food colours is restricted to the articles enumerated in the Rules. Rule 23 clearly provides that addition of a colour to any article of food except as specifically permitted by the Rules is prohibited. It is clear that tomato soup is not included in the list of food articles in which usage of such synthetic food colours is permitted and therefore addition of colour in the present case to the tomato soup was not permissible under the Act. Hence, in view of the above, we reject the contentions raised by the learned Senior Counsel for the Appellant.
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15. In so far as the contention raised by the learned Senior Counsel for the Appellant regarding the General Manager not being liable to be proceeded against is concerned, the same has not been canvassed before any of the forums below and it cannot be permitted to be taken for the first time at this appellate stage.16. Further, the contention with respect to mixing of the additive being permissible in tomato juice is concerned, the legislature has made the distinction between tomato soup and tomato juice in the Rules wherein the use of permitted synthetic food colours is restricted to the articles enumerated in the Rules. Rule 23 clearly provides that addition of a colour to any article of food except as specifically permitted by the Rules is prohibited. It is clear that tomato soup is not included in the list of food articles in which usage of such synthetic food colours is permitted and therefore addition of colour in the present case to the tomato soup was not permissible under the Act. Hence, in view of the above, we reject the contentions raised by the learned Senior Counsel for the Appellant.
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P. Dasaratharama Reddy Complex Vs. Government of Karnataka and Ors. | which arose for consideration in Karnataka State Road Transport Corporation and Anr. v. M. Keshava Raju (supra) was whether the appointment of Arbitrator under Section 11 of the 1996 Act was proper. The facts of that case show that on an application filed by the Respondent under Section 11 of the 1996 Act, the Designated Judge appointed an Arbitrator. After hearing the parties, the Arbitrator passed award dated 15.10.1998 whereby he allowed some claims of the Respondent. The objections filed by the Appellant under Section 34 of the 1996 Act were rejected by VI Additional City Civil Judge, Bangalore. In the appeal filed against the judgment of the trial Court, the High Court formulated the following points: (1) Whether the Appellant can be permitted to raise the ground regarding the alleged want of jurisdiction in this Court to refer the dispute between the parties to an Arbitrator under Section 11 of the Act, for the first time, in this appeal. (2) Whether the ground regarding the legality and justification on the part of the Arbitrator to Award a sum of Rs. 2,85,000 towards reimbursement of overhead charges and another sum of Rs. 2,85,000 towards compensating the loss of profits was raised before the Court below, and if it was not raised, whether such plea can be allowed to be raised in this appeal for the first time and if the above plea was in fact raised before the Court below, whether the Arbitrator is justified in awarding a sum of Rs. 2,85,000 towards reimbursement of overhead charges and another sum of Rs. 2,85,000 towards compensating loss of profits having regard to Clause 15(a) of the agreement. The Division Bench referred to Section 16 and held: In our considered opinion, the above plea cannot be entertained for more than one reason. Firstly, one of the objects in enacting the Act is to have early completion of arbitration proceedings minimising the supervisory role of Courts in arbitral process. Sections 4, 5 and 16 of the Act have been enacted to give effect to that object. Secondly, even the method of arbitration as a dispute resolution mechanism and the procedure envisaged for that are intended to reach the finality to resolve the dispute between the parties as quickly as possible. Therefore, it is imperative that the party raising jurisdiction point, should raise such plea at the earliest, that is to say, at the threshold of the proceeding. If that is not insisted, it is trite, the very object in enacting the Act, on the basis of the UNCITRAL Modern Law, would be defeated. The jurisdiction plea now raised for the first time in the Memorandum of Appeal was not raised either directly or by necessary implication before this Court in C.M.P. No. 4/1996 or before the Arbitrator or before the Court below. The Appellant having acquiesced in the jurisdiction of the Arbitral Tribunal without any demur and protest, having participated in the proceedings and having suffered an award cannot now turn round and raise the plea that the orders of this Court in C.M.P. No. 4 of 1996, the award of the Arbitrator and the judgment of the Civil Court dated 20-6-2000 in Arbitration Suit No. 6 of 1998 are nullity. Thirdly, the Appellant should be deemed to have waived his right to object to the jurisdiction of the Arbitrator to pass the impugned award in terms of the provisions of Section 4 of the Act. Section 4 reads as follows: (4) Waiver of right to object A party who knows that - (a) any provision of this Part from which the parties may derogate, or (b) any requirement under the arbitration agreement, has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a time limit is provided for stating that objection, without that period of time, shall be deemed to have waived his right to so object. 17. Section 4 narrates the circumstances in which the party, who knowingly fails to object the non-compliance of any non-mandatory provisions of Part-I or any requirement under the arbitration agreement by the other party, is deemed to have waived his right to object. This section is based on general principles such as estoppel or venire contra factum proprium. It is intended to help the arbitral process function efficiently and in good faith. If there is non-compliance of any non-mandatory provision of Part I or of any requirement of the arbitration agreement by a party to an arbitration agreement of which the other party to the agreement though has the knowledge of such non-compliance but does not object without undue delay, or if a time limit is provided for stating that objection and no objection is taken within that period of time, such a party later on can neither raise objection about that non-compliance of any provision of Part I nor any requirement of the arbitration agreement since such party shall be deemed to have waived its objection. Though, in order to apply the doctrine of waiver by invoking Section 4, the first condition is that the non-compliance must be of non-mandatory provision of Part I or of any requirement under the arbitration agreement, certain mandatory provisions of the Act also provide for a grant of waiver in the event of failure to object. For example, Sub-sections (2) and (3) of Section 16 are one of such mandatory provisions. Section 16(2) of the Act provides that a plea that the Arbitral Tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. Section 16(3) of the Act provides that a plea that the Arbitral Tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. 28. Thus, none of the judgments relied upon by Learned Counsel for the contractors is of any help to their cause. | 0[ds]14. In Mysore Construction Co. v. Karnataka Power Corporation Limited and Ors. (supra), the learned Designated Judge referred to the passage from Russell on Arbitration (19th Edition, page 59), the judgments of this Court in K.K. Modi v. K.N. Modi and Ors. (supra), Chief Conservator of Forests, Rewa v. Ratan Singh Hans AIR 1967 SC 166 ; Smt. Rukmanibai Gupta v. the Collector, Jabalpur (supra); State of Uttar Pradesh v. Tipper Chand (1980) 2 SCC 341 ; State of Orissa v. Damodar Das (1996) 2 SCC 216 ; Bharat Bhushan Bansal v. Uttar Pradesh Small Industries Corporation Limited, Kanpur (1999) 2 SCC 166 and observed:The above decisions make it clear that an agreement or a clause in an agreement can be construed as an arbitration agreement, only if,(i) it provides for or contemplates reference of disputes or difference by either party to a private forum (other than a Court or Tribunal) or decision;(ii) it provides either expressly or impliedly, for an enquiry by the private forum giving due opportunity to both parties to put forth their cases; and(iii) it provides that the decision of the forum is final and binding upon the parties, without recourse to any other remedy and both would abide by such decision.Where there is no provision either for reference of disputes to a private forum, or for a fair and judicious enquiry, or for a decision which is final and binding on parties to the dispute, there is no arbitration agreement.The learned Designated Judge then analysed Clause 29 (old Clause 67) and recorded his observations in the following words:(a) The heading of the clause is settlement of disputes. There is no reference to either arbitration or Arbitrator.(b) Clause (a) provides that if any dispute or difference of any kind whatsoever to arise between the Executive Engineer/Superintending Engineer and the Contractor, regarding the matters mentioned therein, the dispute shall in the first place be referred to Chief Engineer, who has jurisdiction over the work specified in the contract. Thus the reference to the Chief Engineer is only the first phase of the process of settlement of disputes and not the final phase of the settlement of disputes. This is evident from the provision that when a dispute arises, it should in the first place, be referred to the Chief Engineer for decision.(c) The reference is to a person, who has jurisdiction over the contract work and not to an independent Authority nor to an officer of the Corporation, who has no connection or control over the work. In other words, the decision of Chief Engineer is a decision by a person who has overall supervision and charge of the execution of the work. This gives an indication that the decision of the Chief Engineer is not intended to be an adjudication of the rights of the parties to the dispute, but intended to be a decision of one party in regard to the claim of the other party, to enable the other party to seek relief in a Court of law, if he is not satisfied with the decision.(d) Sub-clause (b) provides that subject to other form of settlement provided in the ensuing sub-clause, the Chief Engineers decision in respect of every dispute or difference so referred, shall be final and binding upon the Contractor. This clause makes it clear that the final remedy of the Contractor is to approach the law Court for decision on the dispute. It is also significant that the decision given by the Chief Engineer is made final and binding upon the Contractor (subject to other remedies specified) and not KPC. Any decision, which is made binding only on one party and not on both the parties, cannot be an adjudicatory decision. The very principle of adjudication of a dispute is that it is binding on both the parties.(e) Clause (c) provides that if the Contractor is not satisfied with the decision of the Chief Engineer, he can approach the law Court at Karwar for settlement of the dispute The clause requires the Contractor to approach the law Court for settlement of disputes. If as contended by the Petitioner, the disputes are to be settled by way of arbitration by the Chief Engineer, acting as Arbitrator, then the question of one of the parties being permitted to approach the law Courts for settlement of the disputes does not arise. If the Chief Engineer is the Arbitrator and his decision is an award, then a party can approach the Civil Court only for setting aside the award and not for settlement of the disputes. This provision makes it clear that the decision of the Chief Engineer is not intended to be a decision by way of adjudication of the disputes/differences between the parties by way of arbitration but is intended to be merely a decision of the party (employer) which, when intimated to the other side, gives rise to a cause of action to the other party (Contractor) to approach the Civil Court for adjudication of its dispute/claim.(f) Similarly, Sub-clause (d) which provides that if the Chief Engineer does not give his decision within a particular period, the Contractor can approach the Civil Court for settlement of the dispute, again demonstrates that no finality is intended to be attached to the decision of the Chief Engineer and the final adjudication should be by the Civil Court and not by the Chief Engineer.The scheme of Clause 29 (or old Clause 67) therefore is, whenever the Contractor has a claim which is not settled by the Executive Engineer or Superintending Engineer, he has to make the claim before the Chief Engineer. If the Chief Engineer examines the matter and gives his decision which is not acceptable to the Contractor, or if the Chief Engineer does not give his decision within the time specified, the Contractor has to approach the Civil Court, by filing a civil suit and get his disputes/claims adjudicated, on merits. Use of words to approach the Civil Court for settlement of disputes makes it clear that final adjudicating authority in the case of a dispute is the Civil Court and not the Chief Engineer. Thus, the Intention of the parties is not to refer any dispute for adjudication by way of arbitration but to get adjudicated the dispute only through the normal procedure of approaching law Courts. The said clause does not also contemplate or require the Chief Engineer to hold any enquiry or hear the parties before deciding the matter. On the other hand, the clause merely requires the Chief Engineer to consider the claim of the Contractor and give his decision thereon. Such decision being on behalf of KPC, the Contractor can either accept it or approach the Civil Court for adjudication. Thus the Petitioner has failed to make out two of the three ingredientsrequirement of enquiry by the named Authority and requirement of finality by a binding decision.15. The distinction between an expert determination and arbitration has been spelt out in Russell on Arbitration, 21st Edn., in the following words:Many cases have been fought over whether a contracts chosen form of dispute resolution is expert determination or arbitration. This is a matter of construction of the contract, which involves an objective enquiry into the intentions of the parties. First, there are the express words of the disputes clause. If specific words such as arbitrator, arbitral tribunal, arbitration or the formula as an expert and not as an arbitrator are used to describe the manner in which the dispute resolver is to act, they are likely to be persuasive although not always conclusive....Where there is no express wording, the court will refer to certain guidelines. of these, the most important used to be, whether there was an issue between the parties such as the value of an asset on which they had not taken defined positions, in which case the procedure was held to be expert determination; or a formulated dispute between the parties where defined positions had been taken, in which case the procedure was held to be an arbitration. This imprecise concept is still being relied on. It is unsatisfactory because some parties to contract deliberately choose expert determination for dispute resolution. The next guideline is the judicial function of an arbitral tribunal as opposed to the expertise of the expert; ....An arbitral tribunal arrives at its decision on the evidence and submissions of the parties and must apply the law or if the parties agree, on other consideration; an expert, unless it is agreed otherwise, makes his own enquiries, applies his own expertise and decides on his own expert opinion.21. To the aforesaid proposition, we may add that in terms of Clause 29(a) and similar other clauses, any dispute or difference irrespective of its nomenclature in matters relating to specifications, designs, drawings, quality of workmanship or material used or any question relating to claim, right in any way arising out of or relating to the contract designs, drawings etc. or failure on the contractors part to execute the work, whether arising during the progress of the work or after its completion, termination or abandonment has to be first referred to the Chief Engineer or the Designated Officer of the Department. The Chief Engineer or the Designated Officer is not an independent authority or person, who has no connection or control over the work. As a matter of fact, he is having over all supervision and charge of the execution of the work. He is not required to hear the parties or to take evidence, oral or documentary. He is not invested with the power to adjudicate upon the rights of the parties to the dispute or difference and his decision is subject to the right of the aggrieved party to seek relief in a Court of Law. The decision of the Chief Engineer or the Designated Officer is treated as binding on the contractor subject to his right to avail remedy before an appropriate Court. The use of the expression in the first place unmistakably shows that non-adjudicatory decision of the Chief Engineer is subject to the right of the aggrieved party to seek remedy. Therefore, Clause 29 which is subject matter of consideration in most of the appeals and similar clauses cannot be treated as an Arbitration Clause.22. As a corollary to the above, we hold that the judgment of the Designated Judge in Mysore Construction Co. v. Karnataka Power Corporation Ltd. (supra) lays down the correct law.27. One of the questions which arose for consideration in Karnataka State Road Transport Corporation and Anr. v. M. Keshava Raju (supra) was whether the appointment of Arbitrator under Section 11 of the 1996 Act was proper. The facts of that case show that on an application filed by the Respondent under Section 11 of the 1996 Act, the Designated Judge appointed an Arbitrator. After hearing the parties, the Arbitrator passed award dated 15.10.1998 whereby he allowed some claims of the Respondent. The objections filed by the Appellant under Section 34 of the 1996 Act were rejected by VI Additional City Civil Judge, Bangalore. In the appeal filed against the judgment of the trial Court, the High Court formulated the following points:(1) Whether the Appellant can be permitted to raise the ground regarding the alleged want of jurisdiction in this Court to refer the dispute between the parties to an Arbitrator under Section 11 of the Act, for the first time, in this appeal.(2) Whether the ground regarding the legality and justification on the part of the Arbitrator to Award a sum of Rs. 2,85,000 towards reimbursement of overhead charges and another sum of Rs. 2,85,000 towards compensating the loss of profits was raised before the Court below, and if it was not raised, whether such plea can be allowed to be raised in this appeal for the first time and if the above plea was in fact raised before the Court below, whether the Arbitrator is justified in awarding a sum of Rs. 2,85,000 towards reimbursement of overhead charges and another sum of Rs. 2,85,000 towards compensating loss of profits having regard to Clause 15(a) of the agreement.The Division Bench referred to Section 16 and held:In our considered opinion, the above plea cannot be entertained for more than one reason. Firstly, one of the objects in enacting the Act is to have early completion of arbitration proceedings minimising the supervisory role of Courts in arbitral process. Sections 4, 5 and 16 of the Act have been enacted to give effect to that object. Secondly, even the method of arbitration as a dispute resolution mechanism and the procedure envisaged for that are intended to reach the finality to resolve the dispute between the parties as quickly as possible. Therefore, it is imperative that the party raising jurisdiction point, should raise such plea at the earliest, that is to say, at the threshold of the proceeding. If that is not insisted, it is trite, the very object in enacting the Act, on the basis of the UNCITRAL Modern Law, would be defeated. The jurisdiction plea now raised for the first time in the Memorandum of Appeal was not raised either directly or by necessary implication before this Court in C.M.P. No. 4/1996 or before the Arbitrator or before the Court below. The Appellant having acquiesced in the jurisdiction of the Arbitral Tribunal without any demur and protest, having participated in the proceedings and having suffered an award cannot now turn round and raise the plea that the orders of this Court in C.M.P. No. 4 of 1996, the award of the Arbitrator and the judgment of the Civil Court dated 20-6-2000 in Arbitration Suit No. 6 of 1998 are nullity.Thirdly, the Appellant should be deemed to have waived his right to object to the jurisdiction of the Arbitrator to pass the impugned award in terms of the provisions of Section 4 of the Act. Section 4 reads as follows:(4) Waiver of right to objectA party who knows that -(a) any provision of this Part from which the parties may derogate, or(b) any requirement under the arbitration agreement,has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a time limit is provided for stating that objection, without that period of time, shall be deemed to have waived his right to so object.17. Section 4 narrates the circumstances in which the party, who knowingly fails to object the non-compliance of any non-mandatory provisions of Part-I or any requirement under the arbitration agreement by the other party, is deemed to have waived his right to object. This section is based on general principles such as estoppel or venire contra factum proprium. It is intended to help the arbitral process function efficiently and in good faith. If there is non-compliance of any non-mandatory provision of Part I or of any requirement of the arbitration agreement by a party to an arbitration agreement of which the other party to the agreement though has the knowledge of such non-compliance but does not object without undue delay, or if a time limit is provided for stating that objection and no objection is taken within that period of time, such a party later on can neither raise objection about that non-compliance of any provision of Part I nor any requirement of the arbitration agreement since such party shall be deemed to have waived its objection. Though, in order to apply the doctrine of waiver by invoking Section 4, the first condition is that the non-compliance must be of non-mandatory provision of Part I or of any requirement under the arbitration agreement, certain mandatory provisions of the Act also provide for a grant of waiver in the event of failure to object. For example, Sub-sections (2) and (3) of Section 16 are one of such mandatory provisions. Section 16(2) of the Act provides that a plea that the Arbitral Tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. Section 16(3) of the Act provides that a plea that the Arbitral Tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.28. Thus, none of the judgments relied upon by Learned Counsel for the contractors is of any help to their cause.26. Krishna Bhagya Jala Nigam Ltd. v. G. Harishchandra Reddy (supra) was decided on the peculiar facts of that case. The contract which was subject matter of interpretation in that case contained Clause 29. When the Respondent raised disputes and called upon the Chief Engineer to act as an Arbitrator, the latter refused to do so. The Designated Judge allowed CMP No. 26/1999 filed under Section 11 of the 1996 Act and directed the Chief Engineer to act as an Arbitrator. Thereafter, both the parties filed their respective statements before the Arbitrator and produced evidence. The Arbitrator passed award dated 25.6.2000. The Appellant - Krishna Bhagya Jala Nigam Ltd. filed a petition under Section 34(2)(v) of the 1996 Act. The Civil Court confirmed the award of the Arbitrator. Appeal filed against the judgment of the Civil Court was dismissed by the High Court. Before this Court, an argument was raised that Clause 29 of the contract was not an arbitration clause. While rejecting the argument, the two Judge Bench observed:We do not find any merit in the above arguments. The plea of no arbitration clause was not raised in the written statement filed by Jala Nigam before the arbitrator. The said plea was not advanced before the civil court in Arbitration Case No. 1 of 2001. On the contrary, both the courts below on facts have found that Jala Nigam had consented to the arbitration of the disputes by the Chief Engineer. Jala Nigam had participated in the arbitration proceedings. It submitted itself to the authority of the arbitrator. It gave consent to the appointment of the Chief Engineer as an arbitrator. It filed its written statements to the additional claims made by the contractor. The Executive Engineer who appeared on behalf of Jala Nigam did not invoke Section 16 of the Arbitration Act. He did not challenge the competence of the Arbitral Tribunal. He did not call upon the Arbitral Tribunal to rule on its jurisdiction. On the contrary, it submitted to the jurisdiction of the Arbitral Tribunal. It also filed written arguments. It did not challenge the order of the High Court dated 10-9-1999 passed in CMP No. 26 of 1999. Suffice it to say that both the parties accepted that there was an arbitration agreement, they proceeded on that basis and, therefore, Jala Nigam cannot be now be allowed to contend that Clause 29 of the contract did not constitute an arbitration agreement.25. In Punjab State v. Dina Nath (supra), a two Judge Bench was called upon to consider whether Clause 4 of work order No. 114 dated 16.5.1985 constituted an arbitration agreement. The clause in question was as under:Any dispute arising between the department and the contractor/society shall be referred to the Superintending Engineer, Anandpur Sahib, Hydel Circle No. 1, Chandigarh for orders and his decision will be final and acceptable/binding on both the parties.After noticing the judgment in K.K. Modi v. K.N. Modi, the Court observed:Keeping the ingredients as indicated by this Court in K.K. Modi in mind for holding a particular agreement as an arbitration agreement, we now proceed to examine the aforesaid ingredients in the context of the present case:(a) Clause 4 of the Work Order categorically states that the decision of the Superintending engineer shall be binding on the parties.(b) The jurisdiction of the Superintending Engineer to decide the rights of the parties has also been derived from the consent of the parties to the Work Order.(c) The agreement contemplates that the Superintending Engineer shall determine substantive rights of parties as the clause encompasses all varieties of disputes that may arise between the parties and does not restrict the jurisdiction of the Superintending Engineer to specific issues only.(d) That the agreement of the parties to refer their disputes to the decision of the Superintending Engineer is intended to be enforceable in law as it is binding in nature.The words any dispute appears in Clause 4 of the Work Order. Therefore, only on the basis of the materials produced by the parties in support of their respective claims a decision can be arrived at in resolving the dispute between the parties. The use of the words any dispute in Clause 4 of the Work order is wide enough to include all disputes relating to the said Work Order. Therefore, when a party raises a dispute for non-payment of money after completion of the work, which is denied by the other party, such a dispute would come within the meaning of arbitration agreement between the parties. Clause 4 of the Work Order also clearly provides that any dispute between the department and the contractor shall be referred to the Superintending Engineer, Hydel Circle No. 1, Chandigarh for orders. The word orders would indicate some expression of opinion, which is to be carried our, or enforced and which is a conclusion of a body (in this case Superintending engineer, Hydel Circle No. 1, Chandigarh). Then again the conclusion and decision of the Superintending Engineer will be final and binding on both the parties. This being the position in the present case and in view of the fact that Clause 4 of the Work Order is not under challenge before us, the decision that would be arrived at by Superintending Engineer, Hydel Circle No. 1, Chandigarh must also be binding on the parties as a result whereof Clause 4 must be held to be a binding arbitration agreement.The Bench distinguished the judgment in State of Orissa v. Damodar Das (supra) by making the following observations:From a plain reading of this clause in Damodar Das it is evident that the powers of the Public Health Engineer were essentially to supervise and inspect. His powers were limited to the questions relating to the meaning of the specifications, drawings and instructions, quality of workmanship or materials used on the work or as to any other question, claim, right, matter, drawings, specifications, estimates, instructions, orders or these conditions or otherwise concerning the works or the execution or failure to execute the same. However, in the case before us, the Superintending Engineer was given full power to resolve any dispute arising between the parties which power in our view is wide enough to cover any nature of dispute raised by the parties. The clause in the instant case categorically mentions the word dispute which would be referred to him and states his decision would be final and acceptable/binding on both the parties. | 0 | 12,735 | 4,252 | ### Instruction:
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which arose for consideration in Karnataka State Road Transport Corporation and Anr. v. M. Keshava Raju (supra) was whether the appointment of Arbitrator under Section 11 of the 1996 Act was proper. The facts of that case show that on an application filed by the Respondent under Section 11 of the 1996 Act, the Designated Judge appointed an Arbitrator. After hearing the parties, the Arbitrator passed award dated 15.10.1998 whereby he allowed some claims of the Respondent. The objections filed by the Appellant under Section 34 of the 1996 Act were rejected by VI Additional City Civil Judge, Bangalore. In the appeal filed against the judgment of the trial Court, the High Court formulated the following points: (1) Whether the Appellant can be permitted to raise the ground regarding the alleged want of jurisdiction in this Court to refer the dispute between the parties to an Arbitrator under Section 11 of the Act, for the first time, in this appeal. (2) Whether the ground regarding the legality and justification on the part of the Arbitrator to Award a sum of Rs. 2,85,000 towards reimbursement of overhead charges and another sum of Rs. 2,85,000 towards compensating the loss of profits was raised before the Court below, and if it was not raised, whether such plea can be allowed to be raised in this appeal for the first time and if the above plea was in fact raised before the Court below, whether the Arbitrator is justified in awarding a sum of Rs. 2,85,000 towards reimbursement of overhead charges and another sum of Rs. 2,85,000 towards compensating loss of profits having regard to Clause 15(a) of the agreement. The Division Bench referred to Section 16 and held: In our considered opinion, the above plea cannot be entertained for more than one reason. Firstly, one of the objects in enacting the Act is to have early completion of arbitration proceedings minimising the supervisory role of Courts in arbitral process. Sections 4, 5 and 16 of the Act have been enacted to give effect to that object. Secondly, even the method of arbitration as a dispute resolution mechanism and the procedure envisaged for that are intended to reach the finality to resolve the dispute between the parties as quickly as possible. Therefore, it is imperative that the party raising jurisdiction point, should raise such plea at the earliest, that is to say, at the threshold of the proceeding. If that is not insisted, it is trite, the very object in enacting the Act, on the basis of the UNCITRAL Modern Law, would be defeated. The jurisdiction plea now raised for the first time in the Memorandum of Appeal was not raised either directly or by necessary implication before this Court in C.M.P. No. 4/1996 or before the Arbitrator or before the Court below. The Appellant having acquiesced in the jurisdiction of the Arbitral Tribunal without any demur and protest, having participated in the proceedings and having suffered an award cannot now turn round and raise the plea that the orders of this Court in C.M.P. No. 4 of 1996, the award of the Arbitrator and the judgment of the Civil Court dated 20-6-2000 in Arbitration Suit No. 6 of 1998 are nullity. Thirdly, the Appellant should be deemed to have waived his right to object to the jurisdiction of the Arbitrator to pass the impugned award in terms of the provisions of Section 4 of the Act. Section 4 reads as follows: (4) Waiver of right to object A party who knows that - (a) any provision of this Part from which the parties may derogate, or (b) any requirement under the arbitration agreement, has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a time limit is provided for stating that objection, without that period of time, shall be deemed to have waived his right to so object. 17. Section 4 narrates the circumstances in which the party, who knowingly fails to object the non-compliance of any non-mandatory provisions of Part-I or any requirement under the arbitration agreement by the other party, is deemed to have waived his right to object. This section is based on general principles such as estoppel or venire contra factum proprium. It is intended to help the arbitral process function efficiently and in good faith. If there is non-compliance of any non-mandatory provision of Part I or of any requirement of the arbitration agreement by a party to an arbitration agreement of which the other party to the agreement though has the knowledge of such non-compliance but does not object without undue delay, or if a time limit is provided for stating that objection and no objection is taken within that period of time, such a party later on can neither raise objection about that non-compliance of any provision of Part I nor any requirement of the arbitration agreement since such party shall be deemed to have waived its objection. Though, in order to apply the doctrine of waiver by invoking Section 4, the first condition is that the non-compliance must be of non-mandatory provision of Part I or of any requirement under the arbitration agreement, certain mandatory provisions of the Act also provide for a grant of waiver in the event of failure to object. For example, Sub-sections (2) and (3) of Section 16 are one of such mandatory provisions. Section 16(2) of the Act provides that a plea that the Arbitral Tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. Section 16(3) of the Act provides that a plea that the Arbitral Tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. 28. Thus, none of the judgments relied upon by Learned Counsel for the contractors is of any help to their cause.
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and directed the Chief Engineer to act as an Arbitrator. Thereafter, both the parties filed their respective statements before the Arbitrator and produced evidence. The Arbitrator passed award dated 25.6.2000. The Appellant - Krishna Bhagya Jala Nigam Ltd. filed a petition under Section 34(2)(v) of the 1996 Act. The Civil Court confirmed the award of the Arbitrator. Appeal filed against the judgment of the Civil Court was dismissed by the High Court. Before this Court, an argument was raised that Clause 29 of the contract was not an arbitration clause. While rejecting the argument, the two Judge Bench observed:We do not find any merit in the above arguments. The plea of no arbitration clause was not raised in the written statement filed by Jala Nigam before the arbitrator. The said plea was not advanced before the civil court in Arbitration Case No. 1 of 2001. On the contrary, both the courts below on facts have found that Jala Nigam had consented to the arbitration of the disputes by the Chief Engineer. Jala Nigam had participated in the arbitration proceedings. It submitted itself to the authority of the arbitrator. It gave consent to the appointment of the Chief Engineer as an arbitrator. It filed its written statements to the additional claims made by the contractor. The Executive Engineer who appeared on behalf of Jala Nigam did not invoke Section 16 of the Arbitration Act. He did not challenge the competence of the Arbitral Tribunal. He did not call upon the Arbitral Tribunal to rule on its jurisdiction. On the contrary, it submitted to the jurisdiction of the Arbitral Tribunal. It also filed written arguments. It did not challenge the order of the High Court dated 10-9-1999 passed in CMP No. 26 of 1999. Suffice it to say that both the parties accepted that there was an arbitration agreement, they proceeded on that basis and, therefore, Jala Nigam cannot be now be allowed to contend that Clause 29 of the contract did not constitute an arbitration agreement.25. In Punjab State v. Dina Nath (supra), a two Judge Bench was called upon to consider whether Clause 4 of work order No. 114 dated 16.5.1985 constituted an arbitration agreement. The clause in question was as under:Any dispute arising between the department and the contractor/society shall be referred to the Superintending Engineer, Anandpur Sahib, Hydel Circle No. 1, Chandigarh for orders and his decision will be final and acceptable/binding on both the parties.After noticing the judgment in K.K. Modi v. K.N. Modi, the Court observed:Keeping the ingredients as indicated by this Court in K.K. Modi in mind for holding a particular agreement as an arbitration agreement, we now proceed to examine the aforesaid ingredients in the context of the present case:(a) Clause 4 of the Work Order categorically states that the decision of the Superintending engineer shall be binding on the parties.(b) The jurisdiction of the Superintending Engineer to decide the rights of the parties has also been derived from the consent of the parties to the Work Order.(c) The agreement contemplates that the Superintending Engineer shall determine substantive rights of parties as the clause encompasses all varieties of disputes that may arise between the parties and does not restrict the jurisdiction of the Superintending Engineer to specific issues only.(d) That the agreement of the parties to refer their disputes to the decision of the Superintending Engineer is intended to be enforceable in law as it is binding in nature.The words any dispute appears in Clause 4 of the Work Order. Therefore, only on the basis of the materials produced by the parties in support of their respective claims a decision can be arrived at in resolving the dispute between the parties. The use of the words any dispute in Clause 4 of the Work order is wide enough to include all disputes relating to the said Work Order. Therefore, when a party raises a dispute for non-payment of money after completion of the work, which is denied by the other party, such a dispute would come within the meaning of arbitration agreement between the parties. Clause 4 of the Work Order also clearly provides that any dispute between the department and the contractor shall be referred to the Superintending Engineer, Hydel Circle No. 1, Chandigarh for orders. The word orders would indicate some expression of opinion, which is to be carried our, or enforced and which is a conclusion of a body (in this case Superintending engineer, Hydel Circle No. 1, Chandigarh). Then again the conclusion and decision of the Superintending Engineer will be final and binding on both the parties. This being the position in the present case and in view of the fact that Clause 4 of the Work Order is not under challenge before us, the decision that would be arrived at by Superintending Engineer, Hydel Circle No. 1, Chandigarh must also be binding on the parties as a result whereof Clause 4 must be held to be a binding arbitration agreement.The Bench distinguished the judgment in State of Orissa v. Damodar Das (supra) by making the following observations:From a plain reading of this clause in Damodar Das it is evident that the powers of the Public Health Engineer were essentially to supervise and inspect. His powers were limited to the questions relating to the meaning of the specifications, drawings and instructions, quality of workmanship or materials used on the work or as to any other question, claim, right, matter, drawings, specifications, estimates, instructions, orders or these conditions or otherwise concerning the works or the execution or failure to execute the same. However, in the case before us, the Superintending Engineer was given full power to resolve any dispute arising between the parties which power in our view is wide enough to cover any nature of dispute raised by the parties. The clause in the instant case categorically mentions the word dispute which would be referred to him and states his decision would be final and acceptable/binding on both the parties.
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Rashid Vs. State of West Bengal | down in Art. 22 observed after referring to other clauses of Article 22 : "Apart from these enabling and disabling provisions certain procedural rights have been expressly safeguarded by clause (5) of Art. 22. A person detained under a law of preventive detention has a right to obtain information as to the grounds of detention and has also the right to make a representation protesting against an order of preventive detention. Article 22 (5) does not expressly say to whom the representation is to be made and how the detaining authority is to deal with the representation. But it is necessarily implicit in the language of Art. 22 (5) that the State Government to whom the representation is made should properly consider the representation as expeditiously as possible. The constitution of an Advisory Board under Section 8 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it. On behalf of the respondent it was said that there was no express language in Art. 22 (5) requiring the State Government to consider the representation of the detenu. But it is a necessary implication of the language of Art. 22 (5) that the State Government should consider the representation made by the detenu as soon as it is made, apply its mind to it and, if necessary, take appropriate action. In our opinion, the constitutional right to make a representation guaranteed by Art. 22 (5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. The right of representation under Art. 22 (5) is a valuable constitutional right and is not a mere formality. It is, therefore, not possible to accept the argument of the respondent that the State Government is not under a legal obligation to consider the representation of the detenu or that the representation must be kept in cold storage in the archieves of the Secretariat till the time or occasion for sending it to the Advisory Board is reached. If the viewpoint contended for the respondent is correct, the constitutional right under Art. 22 (5) would be rendered illusory." This view was approved in Pankaj Kumar Chakrabarty v. State of West Bengal, (1970) 1 SCR 543 = (AIR 1970 SC 97 ) in these words : "For the reasons aforesaid we are in agreement with the decision in Sk. Abdul Karims case. Consequently the petitioners had a constitutional right and there was on the State Government a corresponding constitutional obligation to consider their representation irrespective of whether they were made before or after their cases were referred to the Advisory Board and that not having been done the order of detention against them cannot be sustained." Now, whether or not the State Government has in a given case considered the representation made by the detenu as soon as possible, in other words, with reasonable dispatch, must necessarily depend on the facts and circumstances of that case, it being neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases. The Court has in each case to consider judicially on the available material if the gap between the receipt of the representation and its consideration by the State Government is so unreasonably long and the explanation for the delay offered by the State Government so unsatisfactory as to render the detention order thereafter illegal. 5. In the present case the gap between February 3, 1972 and March 1, 1972 prima facie requires some explanation justifying the delay as the matter involves encroachment on the petitioners right to personal liberty as guaranteed by the Constitution. This Court is expected to fully protect that right subject to the restrictions placed thereon by the Constitution and the law in the larger interests of the security of the State and maintenance of public order and of supplies and services essential to the community which go to the root of the very sustenance of the State and the people. The explanation merely states in a general way that during that time there was a spate of anti-social activities in the State of West Bengal giving rise to sudden and abrupt increase in the volume of detention cases which led to greater pressure of work and this very much delayed the movement of the files. The records in the office were accordingly not regularly available. This explanation is much too vague and does not require any serious notice. No precise details are given and no figures about the abrupt increase of detention cases have been supplied. The State Government, in our view, should, in any event have made arrangements for dealing with the cases of detention with due promptitude as required by the Constitution. No cogent and convincing material has been placed before us to satisfactorily explain the inability of the State Government in considering the petitioners representation within reasonable time. We are not satisfied that anything of great magnitude had suddenly happened in that State which was so unexpected and extraordinary in its nature that the State Government had been taken by surprise and was thus rendered so helpless as to be unable to comply with the requirements of the Constitution for expeditiously considering the petitioners representation. The State Government, in our view, failed to realise the vital importance of the constitutional check placed on the subjective exercise of the extraordinary power of preventively detaining citizens without trial. This check, it may be pointed out, serves as a safeguard against misuse or improper exercise of this power and is inextricably linked with the legality of preventive detention. We are not unmindful of the interest of the society but those interests have been harmonised by the Constitution with the interest of the individual. 6. In the view that we have taken on this challenge it is unnecessary to consider any other point in this case. | 1[ds]We do not attach any importance to the petitioners averment that he had been arrested in December, 1971 in connection with some other cases for the simple reason that he was admittedly detained under the impugned detention order with effect from January 5, 1972. His earlier arrest in connection with some other cases cannot render his detention under the order dated January 3, 1972 illegal, if otherwise it does not suffer from any infirmity.5. In the present case the gap between February 3, 1972 and March 1, 1972 prima facie requires some explanation justifying the delay as the matter involves encroachment on the petitioners right to personal liberty as guaranteed by the Constitution. This Court is expected to fully protect that right subject to the restrictions placed thereon by the Constitution and the law in the larger interests of the security of the State and maintenance of public order and of supplies and services essential to the community which go to the root of the very sustenance of the State and the people. The explanation merely states in a general way that during that time there was a spate ofl activities in the State of West Bengal giving rise to sudden and abrupt increase in the volume of detention cases which led to greater pressure of work and this very much delayed the movement of the files. The records in the office were accordingly not regularly available. This explanation is much too vague and does not require any serious notice. No precise details are given and no figures about the abrupt increase of detention cases have been supplied. The State Government, in our view, should, in any event have made arrangements for dealing with the cases of detention with due promptitude as required by the Constitution. No cogent and convincing material has been placed before us to satisfactorily explain the inability of the State Government in considering the petitioners representation within reasonable time. We are not satisfied that anything of great magnitude had suddenly happened in that State which was so unexpected and extraordinary in its nature that the State Government had been taken by surprise and was thus rendered so helpless as to be unable to comply with the requirements of the Constitution for expeditiously considering the petitioners representation. The State Government, in our view, failed to realise the vital importance of the constitutional check placed on the subjective exercise of the extraordinary power of preventively detaining citizens without trial. This check, it may be pointed out, serves as a safeguard against misuse or improper exercise of this power and is inextricably linked with the legality of preventive detention. We are not unmindful of the interest of the society but those interests have been harmonised by the Constitution with the interest of the individual6. In the view that we have taken on this challenge it is unnecessary to consider any other point in this case. | 1 | 2,073 | 519 | ### 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:
down in Art. 22 observed after referring to other clauses of Article 22 : "Apart from these enabling and disabling provisions certain procedural rights have been expressly safeguarded by clause (5) of Art. 22. A person detained under a law of preventive detention has a right to obtain information as to the grounds of detention and has also the right to make a representation protesting against an order of preventive detention. Article 22 (5) does not expressly say to whom the representation is to be made and how the detaining authority is to deal with the representation. But it is necessarily implicit in the language of Art. 22 (5) that the State Government to whom the representation is made should properly consider the representation as expeditiously as possible. The constitution of an Advisory Board under Section 8 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it. On behalf of the respondent it was said that there was no express language in Art. 22 (5) requiring the State Government to consider the representation of the detenu. But it is a necessary implication of the language of Art. 22 (5) that the State Government should consider the representation made by the detenu as soon as it is made, apply its mind to it and, if necessary, take appropriate action. In our opinion, the constitutional right to make a representation guaranteed by Art. 22 (5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. The right of representation under Art. 22 (5) is a valuable constitutional right and is not a mere formality. It is, therefore, not possible to accept the argument of the respondent that the State Government is not under a legal obligation to consider the representation of the detenu or that the representation must be kept in cold storage in the archieves of the Secretariat till the time or occasion for sending it to the Advisory Board is reached. If the viewpoint contended for the respondent is correct, the constitutional right under Art. 22 (5) would be rendered illusory." This view was approved in Pankaj Kumar Chakrabarty v. State of West Bengal, (1970) 1 SCR 543 = (AIR 1970 SC 97 ) in these words : "For the reasons aforesaid we are in agreement with the decision in Sk. Abdul Karims case. Consequently the petitioners had a constitutional right and there was on the State Government a corresponding constitutional obligation to consider their representation irrespective of whether they were made before or after their cases were referred to the Advisory Board and that not having been done the order of detention against them cannot be sustained." Now, whether or not the State Government has in a given case considered the representation made by the detenu as soon as possible, in other words, with reasonable dispatch, must necessarily depend on the facts and circumstances of that case, it being neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases. The Court has in each case to consider judicially on the available material if the gap between the receipt of the representation and its consideration by the State Government is so unreasonably long and the explanation for the delay offered by the State Government so unsatisfactory as to render the detention order thereafter illegal. 5. In the present case the gap between February 3, 1972 and March 1, 1972 prima facie requires some explanation justifying the delay as the matter involves encroachment on the petitioners right to personal liberty as guaranteed by the Constitution. This Court is expected to fully protect that right subject to the restrictions placed thereon by the Constitution and the law in the larger interests of the security of the State and maintenance of public order and of supplies and services essential to the community which go to the root of the very sustenance of the State and the people. The explanation merely states in a general way that during that time there was a spate of anti-social activities in the State of West Bengal giving rise to sudden and abrupt increase in the volume of detention cases which led to greater pressure of work and this very much delayed the movement of the files. The records in the office were accordingly not regularly available. This explanation is much too vague and does not require any serious notice. No precise details are given and no figures about the abrupt increase of detention cases have been supplied. The State Government, in our view, should, in any event have made arrangements for dealing with the cases of detention with due promptitude as required by the Constitution. No cogent and convincing material has been placed before us to satisfactorily explain the inability of the State Government in considering the petitioners representation within reasonable time. We are not satisfied that anything of great magnitude had suddenly happened in that State which was so unexpected and extraordinary in its nature that the State Government had been taken by surprise and was thus rendered so helpless as to be unable to comply with the requirements of the Constitution for expeditiously considering the petitioners representation. The State Government, in our view, failed to realise the vital importance of the constitutional check placed on the subjective exercise of the extraordinary power of preventively detaining citizens without trial. This check, it may be pointed out, serves as a safeguard against misuse or improper exercise of this power and is inextricably linked with the legality of preventive detention. We are not unmindful of the interest of the society but those interests have been harmonised by the Constitution with the interest of the individual. 6. In the view that we have taken on this challenge it is unnecessary to consider any other point in this case.
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### Explanation:
We do not attach any importance to the petitioners averment that he had been arrested in December, 1971 in connection with some other cases for the simple reason that he was admittedly detained under the impugned detention order with effect from January 5, 1972. His earlier arrest in connection with some other cases cannot render his detention under the order dated January 3, 1972 illegal, if otherwise it does not suffer from any infirmity.5. In the present case the gap between February 3, 1972 and March 1, 1972 prima facie requires some explanation justifying the delay as the matter involves encroachment on the petitioners right to personal liberty as guaranteed by the Constitution. This Court is expected to fully protect that right subject to the restrictions placed thereon by the Constitution and the law in the larger interests of the security of the State and maintenance of public order and of supplies and services essential to the community which go to the root of the very sustenance of the State and the people. The explanation merely states in a general way that during that time there was a spate ofl activities in the State of West Bengal giving rise to sudden and abrupt increase in the volume of detention cases which led to greater pressure of work and this very much delayed the movement of the files. The records in the office were accordingly not regularly available. This explanation is much too vague and does not require any serious notice. No precise details are given and no figures about the abrupt increase of detention cases have been supplied. The State Government, in our view, should, in any event have made arrangements for dealing with the cases of detention with due promptitude as required by the Constitution. No cogent and convincing material has been placed before us to satisfactorily explain the inability of the State Government in considering the petitioners representation within reasonable time. We are not satisfied that anything of great magnitude had suddenly happened in that State which was so unexpected and extraordinary in its nature that the State Government had been taken by surprise and was thus rendered so helpless as to be unable to comply with the requirements of the Constitution for expeditiously considering the petitioners representation. The State Government, in our view, failed to realise the vital importance of the constitutional check placed on the subjective exercise of the extraordinary power of preventively detaining citizens without trial. This check, it may be pointed out, serves as a safeguard against misuse or improper exercise of this power and is inextricably linked with the legality of preventive detention. We are not unmindful of the interest of the society but those interests have been harmonised by the Constitution with the interest of the individual6. In the view that we have taken on this challenge it is unnecessary to consider any other point in this case.
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