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Davenport & Co. Pvt. Ltd Vs. Commissioner Of Income -Tax, West Bengal | consideration in the appeal before usAnother authority on which the decision in Raghunath Prasads case relies is State of Andhra Pradesh v. Kolla Sree Ramamurthy, which is also a case under the Madras General Sales Tax Act, 1939. The respondent in that case, a dealer in gunny bags, purchased gunnies from the mills on terms of written contracts which were on printed forms. These contracts were entered into by brokers acting for the respondent who sent him " Bought-Notes " setting out the terms upon which the purchases had been effected from the mills. The mills having received a part of the purchase money in terms of the contract issued delivery orders directing the delivery of goods as per the contract. Instead of taking delivery himself, the respondent endorsed the delivery orders and these passed through several hands before the ultimate holder of the delivery orders presented them to the mills and obtained delivery of the gunnies on payment. The question that arose for decision was whether the transactions entered into by the respondent were mere sales of delivery orders or sales of goods so as to bring them to charge under section 3 of the said Act. At the date of the contract for purchase by the respondent, the goods which were the subject-matter of the purchase were not appropriated to the contract so that there was no completed sale since no property passed, but only an agreement for sale. In considering the effect of the position that the property in the goods passed to the ultimate endorsee of the delivery orders, Mr. Justice Ayyangar, speaking for the court, relied on an English decision, Butterworth v. Kingsway Motors Ltd., to hold that though the respondent and his transferees had not acquired any title to the goods, the title acquired by the ultimate endorsee of the delivery orders went to feed their previously defective title and enured to their benefit. His Lordship further observed that this was the principle that formed the basis of the decision in Bayyana Bhimayyas case. Here again, the question that was considered has hardly any connection with section 24 of the Indian Income-tax Act, 1922, and the observations made in this case cannot be a guide to the solution of the problem arising in the case before usSection 6 of the Indian Income-tax Act, 1922, enumerates the heads of income chargeable to income-tax. Section 24(1) of the Act provides that where an assessee sustains a loss under any of these heads in any year, he shall be entitled to have the loss set off against his income, profits or gains under any other head in that year. This general provision is qualified by the first proviso which permits the set-off of a loss in speculative business against the assessees profits and gains, if any, in a similar business only. Explanation 1 says that where the speculative transactions are of such a nature as to constitute a business, the business shall be deemed to be distinct and separate from any other business. Explanation 2 defines a speculative transaction as a transaction in which a contract for purchase and sale of any commodity is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity. The words " actual delivery " in Explanation 2 mean real as opposed to notional delivery. For income-tax purposes speculative transaction means what the definition of that expression in Explanation 2 says. Whether a transaction is speculative in the general sense or under the Contract Act is not relevant for the purpose of this Explanation. The definition of " delivery " in section 2(2) of the Sale of Goods Act which has been held to include both actual and constructive or symbolical delivery has no bearing on the definition of speculative transaction in the Explanation. A transaction which is otherwise speculative would not be a speculative transaction within the meaning of Explanation 2 if actual delivery of the commodity or the scrips has taken place ; on the other hand, a transaction which is not otherwise speculative in nature may yet be speculative according to Explanation 2 if there is no actual delivery of the commodity or the scrips. The Explanation does not invalidate speculative transactions which are otherwise legal but gives a special meaning to that expression for purposes of income-tax only. In D. M. Wadhwana v. Commissioner of Income-tax, on which the Tribunals decision in this case is based, the Calcutta High Court observed" The Explanation to section 24(1), however, does not prevent persons from entering into contracts in which the buyers and sellers may not actually hand over the goods physically. The Explanation is only designed at segregating for income-tax purposes loss sustained in transactions of a certain kind. It may be that such transactions are not speculative in the light of section 30 of the Contract Act ... In enacting the Explanation 2 of section 24(1) of the Income-tax Act, the legislature did not intend to affect any transaction of sale wherein the goods were not physically delivered by the seller to the buyer but only laid down that if there was no actual or physical delivery, the loss, if any, would be a loss in a speculative transaction which could be allowed to be set off only against a profit in a transaction of the same nature ... The object of the Explanation is not to invalidate transactions which are not completed by actual delivery of the goods but only to brand them as speculative transactions so as to put them in a special category for income-tax purposes."7. In our opinion this is a correct statement of the law. This aspect of the matter was not considered in Ragunath Prasad Poddar v. Commissioner of Income-tax . We think the law on the point was correctly stated in D. M. Wadhwana v. Commissioner of Income-tax, and in our opinion the question referred to the High Court in the present case has been correctly answered. | 0[ds]The observation made in this context does not also seem to us relevant to the question under consideration in the appeal beforeagain, the question that was considered has hardly any connection with section 24 of the Indian Income-tax Act, 1922, and the observations made in this case cannot be a guide to the solution of the problem arising in the case before usSection 6 of the Indian Income-tax Act, 1922, enumerates the heads of income chargeable to income-tax. Section 24(1) of the Act provides that where an assessee sustains a loss under any of these heads in any year, he shall be entitled to have the loss set off against his income, profits or gains under any other head in that year. This general provision is qualified by the first proviso which permits the set-off of a loss in speculative business against the assessees profits and gains, if any, in a similar businessa transaction is speculative in the general sense or under the Contract Act is not relevant for the purpose of this Explanation. The definition of " delivery " in section 2(2) of the Sale of Goods Act which has been held to include both actual and constructive or symbolical delivery has no bearing on the definition of speculative transaction in the Explanation. A transaction which is otherwise speculative would not be a speculative transaction within the meaning of Explanation 2 if actual delivery of the commodity or the scrips has taken place ; on the other hand, a transaction which is not otherwise speculative in nature may yet be speculative according to Explanation 2 if there is no actual delivery of the commodity or the scrips. The Explanation does not invalidate speculative transactions which are otherwise legal but gives a special meaning to that expression for purposes of income-taxD. M. Wadhwana v. Commissioner of Income-tax, on which the Tribunals decision in this case is based, the Calcutta High Court observed" The Explanation to section 24(1), however, does not prevent persons from entering into contracts in which the buyers and sellers may not actually hand over the goods physically. The Explanation is only designed at segregating for income-tax purposes loss sustained in transactions of a certain kind. It may be that such transactions are not speculative in the light of section 30 of the Contract Act ... In enacting the Explanation 2 of section 24(1) of the Income-tax Act, the legislature did not intend to affect any transaction of sale wherein the goods were not physically delivered by the seller to the buyer but only laid down that if there was no actual or physical delivery, the loss, if any, would be a loss in a speculative transaction which could be allowed to be set off only against a profit in a transaction of the same nature ... The object of the Explanation is not to invalidate transactions which are not completed by actual delivery of the goods but only to brand them as speculative transactions so as to put them in a special category for income-taxour opinion this is a correct statement of the law. This aspect of the matter was not considered in Ragunath Prasad Poddar v. Commissioner of Income-tax . We think the law on the point was correctly stated in D. M. Wadhwana v. Commissioner of Income-tax, and in our opinion the question referred to the High Court in the present case has been correctly answered. | 0 | 3,139 | 618 | ### Instruction:
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consideration in the appeal before usAnother authority on which the decision in Raghunath Prasads case relies is State of Andhra Pradesh v. Kolla Sree Ramamurthy, which is also a case under the Madras General Sales Tax Act, 1939. The respondent in that case, a dealer in gunny bags, purchased gunnies from the mills on terms of written contracts which were on printed forms. These contracts were entered into by brokers acting for the respondent who sent him " Bought-Notes " setting out the terms upon which the purchases had been effected from the mills. The mills having received a part of the purchase money in terms of the contract issued delivery orders directing the delivery of goods as per the contract. Instead of taking delivery himself, the respondent endorsed the delivery orders and these passed through several hands before the ultimate holder of the delivery orders presented them to the mills and obtained delivery of the gunnies on payment. The question that arose for decision was whether the transactions entered into by the respondent were mere sales of delivery orders or sales of goods so as to bring them to charge under section 3 of the said Act. At the date of the contract for purchase by the respondent, the goods which were the subject-matter of the purchase were not appropriated to the contract so that there was no completed sale since no property passed, but only an agreement for sale. In considering the effect of the position that the property in the goods passed to the ultimate endorsee of the delivery orders, Mr. Justice Ayyangar, speaking for the court, relied on an English decision, Butterworth v. Kingsway Motors Ltd., to hold that though the respondent and his transferees had not acquired any title to the goods, the title acquired by the ultimate endorsee of the delivery orders went to feed their previously defective title and enured to their benefit. His Lordship further observed that this was the principle that formed the basis of the decision in Bayyana Bhimayyas case. Here again, the question that was considered has hardly any connection with section 24 of the Indian Income-tax Act, 1922, and the observations made in this case cannot be a guide to the solution of the problem arising in the case before usSection 6 of the Indian Income-tax Act, 1922, enumerates the heads of income chargeable to income-tax. Section 24(1) of the Act provides that where an assessee sustains a loss under any of these heads in any year, he shall be entitled to have the loss set off against his income, profits or gains under any other head in that year. This general provision is qualified by the first proviso which permits the set-off of a loss in speculative business against the assessees profits and gains, if any, in a similar business only. Explanation 1 says that where the speculative transactions are of such a nature as to constitute a business, the business shall be deemed to be distinct and separate from any other business. Explanation 2 defines a speculative transaction as a transaction in which a contract for purchase and sale of any commodity is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity. The words " actual delivery " in Explanation 2 mean real as opposed to notional delivery. For income-tax purposes speculative transaction means what the definition of that expression in Explanation 2 says. Whether a transaction is speculative in the general sense or under the Contract Act is not relevant for the purpose of this Explanation. The definition of " delivery " in section 2(2) of the Sale of Goods Act which has been held to include both actual and constructive or symbolical delivery has no bearing on the definition of speculative transaction in the Explanation. A transaction which is otherwise speculative would not be a speculative transaction within the meaning of Explanation 2 if actual delivery of the commodity or the scrips has taken place ; on the other hand, a transaction which is not otherwise speculative in nature may yet be speculative according to Explanation 2 if there is no actual delivery of the commodity or the scrips. The Explanation does not invalidate speculative transactions which are otherwise legal but gives a special meaning to that expression for purposes of income-tax only. In D. M. Wadhwana v. Commissioner of Income-tax, on which the Tribunals decision in this case is based, the Calcutta High Court observed" The Explanation to section 24(1), however, does not prevent persons from entering into contracts in which the buyers and sellers may not actually hand over the goods physically. The Explanation is only designed at segregating for income-tax purposes loss sustained in transactions of a certain kind. It may be that such transactions are not speculative in the light of section 30 of the Contract Act ... In enacting the Explanation 2 of section 24(1) of the Income-tax Act, the legislature did not intend to affect any transaction of sale wherein the goods were not physically delivered by the seller to the buyer but only laid down that if there was no actual or physical delivery, the loss, if any, would be a loss in a speculative transaction which could be allowed to be set off only against a profit in a transaction of the same nature ... The object of the Explanation is not to invalidate transactions which are not completed by actual delivery of the goods but only to brand them as speculative transactions so as to put them in a special category for income-tax purposes."7. In our opinion this is a correct statement of the law. This aspect of the matter was not considered in Ragunath Prasad Poddar v. Commissioner of Income-tax . We think the law on the point was correctly stated in D. M. Wadhwana v. Commissioner of Income-tax, and in our opinion the question referred to the High Court in the present case has been correctly answered.
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### Explanation:
The observation made in this context does not also seem to us relevant to the question under consideration in the appeal beforeagain, the question that was considered has hardly any connection with section 24 of the Indian Income-tax Act, 1922, and the observations made in this case cannot be a guide to the solution of the problem arising in the case before usSection 6 of the Indian Income-tax Act, 1922, enumerates the heads of income chargeable to income-tax. Section 24(1) of the Act provides that where an assessee sustains a loss under any of these heads in any year, he shall be entitled to have the loss set off against his income, profits or gains under any other head in that year. This general provision is qualified by the first proviso which permits the set-off of a loss in speculative business against the assessees profits and gains, if any, in a similar businessa transaction is speculative in the general sense or under the Contract Act is not relevant for the purpose of this Explanation. The definition of " delivery " in section 2(2) of the Sale of Goods Act which has been held to include both actual and constructive or symbolical delivery has no bearing on the definition of speculative transaction in the Explanation. A transaction which is otherwise speculative would not be a speculative transaction within the meaning of Explanation 2 if actual delivery of the commodity or the scrips has taken place ; on the other hand, a transaction which is not otherwise speculative in nature may yet be speculative according to Explanation 2 if there is no actual delivery of the commodity or the scrips. The Explanation does not invalidate speculative transactions which are otherwise legal but gives a special meaning to that expression for purposes of income-taxD. M. Wadhwana v. Commissioner of Income-tax, on which the Tribunals decision in this case is based, the Calcutta High Court observed" The Explanation to section 24(1), however, does not prevent persons from entering into contracts in which the buyers and sellers may not actually hand over the goods physically. The Explanation is only designed at segregating for income-tax purposes loss sustained in transactions of a certain kind. It may be that such transactions are not speculative in the light of section 30 of the Contract Act ... In enacting the Explanation 2 of section 24(1) of the Income-tax Act, the legislature did not intend to affect any transaction of sale wherein the goods were not physically delivered by the seller to the buyer but only laid down that if there was no actual or physical delivery, the loss, if any, would be a loss in a speculative transaction which could be allowed to be set off only against a profit in a transaction of the same nature ... The object of the Explanation is not to invalidate transactions which are not completed by actual delivery of the goods but only to brand them as speculative transactions so as to put them in a special category for income-taxour opinion this is a correct statement of the law. This aspect of the matter was not considered in Ragunath Prasad Poddar v. Commissioner of Income-tax . We think the law on the point was correctly stated in D. M. Wadhwana v. Commissioner of Income-tax, and in our opinion the question referred to the High Court in the present case has been correctly answered.
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Nav Rattanmal And Others Vs. The State Of Rajasthan | suit between the Government on the one hand and private individuals on the other.12. First and foremost there is this feature that the Limitation Act, though a statute of repose and intended for quieting titles, and in that sense looks at the problem from the point of view of the defendant with a view to provide for him a security against stale claims, addresses itself at the same time also to the position of the plaintiff. Thus, for instance where the plaintiff is under a legal disability to institute a suit by reason of his being a minor or being insane or an idiot, it makes provisions for the extension of the period taking into account that disability. Similarly, public interest in a claim being protected is taken into account by S. 10 of the Act by providing that there shall be no period of limitation in the case of express trusts. It is not necessary to go into the details of these provisions but it is sufficient to state that the approach here is from the point of view of protecting the enforceability of claims which, if the ordinary rules applied, would become barred by limitation. It is in great part on this principle that it is said that subject to statutory provision, while the maxim vigilantibus et non dormientibus jura Subveniunt is a rule for the subject, the maxim nullum tempus occurit regi is in general applicable to the Crown. The reason assigned was, the quote Coke, that the State ought not to suffer for the negligence of its officers or for their fraudulent collusion with the adverse party. It is with this background that the question of the special provision contained in Art. 149 of the Act has to be viewed.First we have the fact that in the case of the Government if a claim becomes barred by limitation, the loss falls on the public, i.e., on the community in general and to the benefit of the private individual who derives advantage by the lapse of time. This itself would appear to indicate a sufficient ground for differentiating between the claims of an individual and the claims of the community at large. Next, it may be mentioned that in the case of governmental machinery, it is a known fact that it does not move as quickly as in the case of individuals. Apart from the delay occurring in the proper officers ascertaining that a cause of action has accrued- Government being an impersonal body, before a claim is launched there has to be inter-departmental correspondence, consultations, sanctions obtained according to the rules. These necessarily take time and it is because of these features which are sometimes characterised as re-tape that there is delay in the functioning of Government officers. It is precisely for this reason that we have from earliest Civil Procedure Codes provisions which find place in the Code of 1908, like O. 27, Rr. 5 and 7 reading:"O. 27, R. 5. The Court in fixing the day for the Government to answer to the plaint, shall allow a reasonable time for the necessary communication with the Government through the proper channel, and for the issue of instructions to the Government pleader to appear and answer on behalf of the Government and may extend the time at its discretion.O. 27. R. 7. (1) Where the defendant is a public officer and, in receiving the summons, considers it proper to make a reference to the Government before answering the plaint, he may apply to the Court to grant such extension of the time fixed in the summons as may be necessary to enable him to make such reference and to receive orders thereon through the proper channel.2. Upon such application the Court shall extend the time for so long as appears to it to be necessary."These matters apart, the ratio underlying the special provisions for summary recovery of amounts due to Government without resort to suits by a procedure not available for enforcing the dues of private individuals like the "Revenue Recovery Acts" and "Public Demands Recovery Acts" which have been on the statute book for over a century is also similar, viz., the interest of the public and of the community in realising what is due to it expeditiously; and the constitutional validity of such provisions have been sustained by this Court. In Purshottam Govindji Halai v. B. M. Desai, 1955-2 SCR 887 : ( (S) AIR 1956 SC 20 ) this Court held that S. 13 of the Bombay Land Revenue Act,1876, by virtue of which a person had been arrested in pursuance of a warrant issued for recovery of a demand certified under S. 46(2) of the Indian Income-tax Act , did not offend Art. 14 of the Constitution. Similarly, in Collector off Malabar v. Ebrahim, 1957 SCR 970 : ( (S)AIR 1957 SC 688 ) the arrest of a defaulter in respect of an income-tax demand under S. 48 of the Madras Revenue Recovery Act was held not to offend Art. 14 of the Constitution. Perhaps another decision of this Court of more immediate relevance, in which the point now raised that there is no rational basis for distinguishing between the claims of the Government and the claims of private individuals-was considered and negatived, is that in Mannalal v. Collector, Jhalawar, C. A. No. 88 of 1957: (AIR 1961 SC 828 ) in which judgment was delivered on December 7, 1960. In this last case it was urged before this Court that the summary mode of recovery of amounts due to the Government for which provision was made by the Rajasthan Public Recovery Act there impugned-a mode of recovery which was not available to the private citizen-contravened the equal protection of the laws guaranteed by Art. 14 and this contention was repelled. The argument of learned Counsel for the appellants has therefore to be rejected both on the ground of principle as well as on the ratio underlying the decision of this Court. | 0[ds]This argument was rejected by the courts below and, in our opinion, correctly. In the face of the receipt executed by Lal Chand Kothari it would not be open to him to contend that the recitals in it were not correct, and in any event it would be for him to show that it was incorrect and, of course, there was no possibility of his establishingsubmission is without any foundation, because the liability under the Board would depend upon its terms and in the face of the language used in the document learned Counsel realised that the submission could not be seriouslyif Lal Chand agreed to those terms-and this is not disputed, the terms must prevail. Apart from the terms of the security bond however, it would be apparent that if the key of one of the locks was with the employee of the Treasurer the defalcation could not have occurred without such employees connivance or negligence. If so, the fixing of liability upon the employer could not be characterised even as unreasonable apart from the liability flowing from the terms of the Bond, and such a vicarious liability for the negligence or misconduct of his servants, is not lessened by reason of the assistance or negligence of Government officials.8. These exhaust the points urged based on the terms of the Bond. It remains to deal only with the contention that the claim is barred by limitation under Art. 83 of the Limitation Act on the plea that Art.149 of the Limitation Act which fixes a period of 60 years for suits by the Government is unconstitutional as violating Art. 14 of the Constitution. It is urged that there is no rational basis for treating claims by Government differently from those of private individuals in the matter of the time within which they could be enforced byconsidering this matter two points have to be kept separate. (1) whether a distinction could be drawn or a classification supported between the provision of any variation in the time that should be available for enforcing claims by private individuals and claims by the State, (2) whether if such a classification were good, the period of 60 years provided by Art. 149 of the Indian Limitation Act is such a long period of time as to be unreasonable. We are drawing attention to the distinction between these two points because learned Counsel laid much stress on the fact that the period of limitation fixed by Art.149 was 60 years and that this was an unreasonably long period of time. If learned Counsel is right in his submission that there is no rational basis for placing private individuals and the Government in different classes while framing a legislation providing for limitation for actions he might succeed; but if he is wrong there and t he correct view is that there is a rational basis of classification, then the period that should be allowed to the Government to file a suit would be a matter of legislative policy and could not be brought within the scope or purview of a challenge under Art. 14 or indeed of any other article in the Constitution. It is sufficient therefore if we confine ourselves to the first point, viz., whether there is a rational basis for treating the Government differently as regards the period within which claims might be put in suit between the Government on the one hand and private individuals on thematters apart, the ratio underlying the special provisions for summary recovery of amounts due to Government without resort to suits by a procedure not available for enforcing the dues of private individuals like the "Revenue Recovery Acts" and "Public Demands Recovery Acts" which have been on the statute book for over a century is also similar, viz., the interest of the public and of the community in realising what is due to it expeditiously; and the constitutional validity of such provisions have been sustained by this Court. In Purshottam Govindji Halai v. B. M. Desai, 1955-2 SCR 887 : ( (S) AIR 1956 SC 20 ) this Court held that S. 13 of the Bombay Land Revenue Act,1876, by virtue of which a person had been arrested in pursuance of a warrant issued for recovery of a demand certified under S. 46(2) of the Indian Income-tax Act , did not offend Art. 14 of the Constitution. Similarly, in Collector off Malabar v. Ebrahim, 1957 SCR 970 : ( (S)AIR 1957 SC 688 ) the arrest of a defaulter in respect of an income-tax demand under S. 48 of the Madras Revenue Recovery Act was held not to offend Art. 14 of the Constitution. Perhaps another decision of this Court of more immediate relevance, in which the point now raised that there is no rational basis for distinguishing between the claims of the Government and the claims of private individuals-was considered and negatived, is that in Mannalal v. Collector, Jhalawar, C. A. No. 88 of 1957: (AIR 1961 SC 828 ) in which judgment was delivered on December 7, 1960. In this last case it was urged before this Court that the summary mode of recovery of amounts due to the Government for which provision was made by the Rajasthan Public Recovery Act there impugned-a mode of recovery which was not available to the private citizen-contravened the equal protection of the laws guaranteed by Art. 14 and this contention was repelled. The argument of learned Counsel for the appellants has therefore to be rejected both on the ground of principle as well as on the ratio underlying the decision of this Court.First and foremost there is this feature that the Limitation Act, though a statute of repose and intended for quieting titles, and in that sense looks at the problem from the point of view of the defendant with a view to provide for him a security against stale claims, addresses itself at the same time also to the position of the plaintiff. Thus, for instance where the plaintiff is under a legal disability to institute a suit by reason of his being a minor or being insane or an idiot, it makes provisions for the extension of the period taking into account that disability. Similarly, public interest in a claim being protected is taken into account by S. 10 of the Act by providing that there shall be no period of limitation in the case of express trusts. It is not necessary to go into the details of these provisions but it is sufficient to state that the approach here is from the point of view of protecting the enforceability of claims which, if the ordinary rules applied, would become barred by limitation. It is in great part on this principle that it is said that subject to statutory provision, while the maxim vigilantibus et non dormientibus jura Subveniunt is a rule for the subject, the maxim nullum tempus occurit regi is in general applicable to the Crown. The reason assigned was, the quote Coke, that the State ought not to suffer for the negligence of its officers or for their fraudulent collusion with the adverse party. It is with this background that the question of the special provision contained in Art. 149 of the Act has to be viewed.First we have the fact that in the case of the Government if a claim becomes barred by limitation, the loss falls on the public, i.e., on the community in general and to the benefit of the private individual who derives advantage by the lapse of time. This itself would appear to indicate a sufficient ground for differentiating between the claims of an individual and the claims of the community at large. Next, it may be mentioned that in the case of governmental machinery, it is a known fact that it does not move as quickly as in the case of individuals. Apart from the delay occurring in the proper officers ascertaining that a cause of action has accrued- Government being an impersonal body, before a claim is launched there has to be inter-departmental correspondence, consultations, sanctions obtained according to the rules. These necessarily take time and it is because of these features which are sometimes characterised as re-tape that there is delay in the functioning of Government officers. It is precisely for this reason that we have from earliest Civil Procedure Codes provisions which find place in the Code of 1908, like O. 27, Rr. 5 and 7 | 0 | 3,237 | 1,524 | ### 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:
suit between the Government on the one hand and private individuals on the other.12. First and foremost there is this feature that the Limitation Act, though a statute of repose and intended for quieting titles, and in that sense looks at the problem from the point of view of the defendant with a view to provide for him a security against stale claims, addresses itself at the same time also to the position of the plaintiff. Thus, for instance where the plaintiff is under a legal disability to institute a suit by reason of his being a minor or being insane or an idiot, it makes provisions for the extension of the period taking into account that disability. Similarly, public interest in a claim being protected is taken into account by S. 10 of the Act by providing that there shall be no period of limitation in the case of express trusts. It is not necessary to go into the details of these provisions but it is sufficient to state that the approach here is from the point of view of protecting the enforceability of claims which, if the ordinary rules applied, would become barred by limitation. It is in great part on this principle that it is said that subject to statutory provision, while the maxim vigilantibus et non dormientibus jura Subveniunt is a rule for the subject, the maxim nullum tempus occurit regi is in general applicable to the Crown. The reason assigned was, the quote Coke, that the State ought not to suffer for the negligence of its officers or for their fraudulent collusion with the adverse party. It is with this background that the question of the special provision contained in Art. 149 of the Act has to be viewed.First we have the fact that in the case of the Government if a claim becomes barred by limitation, the loss falls on the public, i.e., on the community in general and to the benefit of the private individual who derives advantage by the lapse of time. This itself would appear to indicate a sufficient ground for differentiating between the claims of an individual and the claims of the community at large. Next, it may be mentioned that in the case of governmental machinery, it is a known fact that it does not move as quickly as in the case of individuals. Apart from the delay occurring in the proper officers ascertaining that a cause of action has accrued- Government being an impersonal body, before a claim is launched there has to be inter-departmental correspondence, consultations, sanctions obtained according to the rules. These necessarily take time and it is because of these features which are sometimes characterised as re-tape that there is delay in the functioning of Government officers. It is precisely for this reason that we have from earliest Civil Procedure Codes provisions which find place in the Code of 1908, like O. 27, Rr. 5 and 7 reading:"O. 27, R. 5. The Court in fixing the day for the Government to answer to the plaint, shall allow a reasonable time for the necessary communication with the Government through the proper channel, and for the issue of instructions to the Government pleader to appear and answer on behalf of the Government and may extend the time at its discretion.O. 27. R. 7. (1) Where the defendant is a public officer and, in receiving the summons, considers it proper to make a reference to the Government before answering the plaint, he may apply to the Court to grant such extension of the time fixed in the summons as may be necessary to enable him to make such reference and to receive orders thereon through the proper channel.2. Upon such application the Court shall extend the time for so long as appears to it to be necessary."These matters apart, the ratio underlying the special provisions for summary recovery of amounts due to Government without resort to suits by a procedure not available for enforcing the dues of private individuals like the "Revenue Recovery Acts" and "Public Demands Recovery Acts" which have been on the statute book for over a century is also similar, viz., the interest of the public and of the community in realising what is due to it expeditiously; and the constitutional validity of such provisions have been sustained by this Court. In Purshottam Govindji Halai v. B. M. Desai, 1955-2 SCR 887 : ( (S) AIR 1956 SC 20 ) this Court held that S. 13 of the Bombay Land Revenue Act,1876, by virtue of which a person had been arrested in pursuance of a warrant issued for recovery of a demand certified under S. 46(2) of the Indian Income-tax Act , did not offend Art. 14 of the Constitution. Similarly, in Collector off Malabar v. Ebrahim, 1957 SCR 970 : ( (S)AIR 1957 SC 688 ) the arrest of a defaulter in respect of an income-tax demand under S. 48 of the Madras Revenue Recovery Act was held not to offend Art. 14 of the Constitution. Perhaps another decision of this Court of more immediate relevance, in which the point now raised that there is no rational basis for distinguishing between the claims of the Government and the claims of private individuals-was considered and negatived, is that in Mannalal v. Collector, Jhalawar, C. A. No. 88 of 1957: (AIR 1961 SC 828 ) in which judgment was delivered on December 7, 1960. In this last case it was urged before this Court that the summary mode of recovery of amounts due to the Government for which provision was made by the Rajasthan Public Recovery Act there impugned-a mode of recovery which was not available to the private citizen-contravened the equal protection of the laws guaranteed by Art. 14 and this contention was repelled. The argument of learned Counsel for the appellants has therefore to be rejected both on the ground of principle as well as on the ratio underlying the decision of this Court.
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this was an unreasonably long period of time. If learned Counsel is right in his submission that there is no rational basis for placing private individuals and the Government in different classes while framing a legislation providing for limitation for actions he might succeed; but if he is wrong there and t he correct view is that there is a rational basis of classification, then the period that should be allowed to the Government to file a suit would be a matter of legislative policy and could not be brought within the scope or purview of a challenge under Art. 14 or indeed of any other article in the Constitution. It is sufficient therefore if we confine ourselves to the first point, viz., whether there is a rational basis for treating the Government differently as regards the period within which claims might be put in suit between the Government on the one hand and private individuals on thematters apart, the ratio underlying the special provisions for summary recovery of amounts due to Government without resort to suits by a procedure not available for enforcing the dues of private individuals like the "Revenue Recovery Acts" and "Public Demands Recovery Acts" which have been on the statute book for over a century is also similar, viz., the interest of the public and of the community in realising what is due to it expeditiously; and the constitutional validity of such provisions have been sustained by this Court. In Purshottam Govindji Halai v. B. M. Desai, 1955-2 SCR 887 : ( (S) AIR 1956 SC 20 ) this Court held that S. 13 of the Bombay Land Revenue Act,1876, by virtue of which a person had been arrested in pursuance of a warrant issued for recovery of a demand certified under S. 46(2) of the Indian Income-tax Act , did not offend Art. 14 of the Constitution. Similarly, in Collector off Malabar v. Ebrahim, 1957 SCR 970 : ( (S)AIR 1957 SC 688 ) the arrest of a defaulter in respect of an income-tax demand under S. 48 of the Madras Revenue Recovery Act was held not to offend Art. 14 of the Constitution. Perhaps another decision of this Court of more immediate relevance, in which the point now raised that there is no rational basis for distinguishing between the claims of the Government and the claims of private individuals-was considered and negatived, is that in Mannalal v. Collector, Jhalawar, C. A. No. 88 of 1957: (AIR 1961 SC 828 ) in which judgment was delivered on December 7, 1960. In this last case it was urged before this Court that the summary mode of recovery of amounts due to the Government for which provision was made by the Rajasthan Public Recovery Act there impugned-a mode of recovery which was not available to the private citizen-contravened the equal protection of the laws guaranteed by Art. 14 and this contention was repelled. The argument of learned Counsel for the appellants has therefore to be rejected both on the ground of principle as well as on the ratio underlying the decision of this Court.First and foremost there is this feature that the Limitation Act, though a statute of repose and intended for quieting titles, and in that sense looks at the problem from the point of view of the defendant with a view to provide for him a security against stale claims, addresses itself at the same time also to the position of the plaintiff. Thus, for instance where the plaintiff is under a legal disability to institute a suit by reason of his being a minor or being insane or an idiot, it makes provisions for the extension of the period taking into account that disability. Similarly, public interest in a claim being protected is taken into account by S. 10 of the Act by providing that there shall be no period of limitation in the case of express trusts. It is not necessary to go into the details of these provisions but it is sufficient to state that the approach here is from the point of view of protecting the enforceability of claims which, if the ordinary rules applied, would become barred by limitation. It is in great part on this principle that it is said that subject to statutory provision, while the maxim vigilantibus et non dormientibus jura Subveniunt is a rule for the subject, the maxim nullum tempus occurit regi is in general applicable to the Crown. The reason assigned was, the quote Coke, that the State ought not to suffer for the negligence of its officers or for their fraudulent collusion with the adverse party. It is with this background that the question of the special provision contained in Art. 149 of the Act has to be viewed.First we have the fact that in the case of the Government if a claim becomes barred by limitation, the loss falls on the public, i.e., on the community in general and to the benefit of the private individual who derives advantage by the lapse of time. This itself would appear to indicate a sufficient ground for differentiating between the claims of an individual and the claims of the community at large. Next, it may be mentioned that in the case of governmental machinery, it is a known fact that it does not move as quickly as in the case of individuals. Apart from the delay occurring in the proper officers ascertaining that a cause of action has accrued- Government being an impersonal body, before a claim is launched there has to be inter-departmental correspondence, consultations, sanctions obtained according to the rules. These necessarily take time and it is because of these features which are sometimes characterised as re-tape that there is delay in the functioning of Government officers. It is precisely for this reason that we have from earliest Civil Procedure Codes provisions which find place in the Code of 1908, like O. 27, Rr. 5 and 7
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VITHALDAS JAGANNATH KHATRI (D) THROUGH SMT. SHAKUNTALA ALIAS SUSHMI Vs. THE STATE OF MAHARASHTRA REVENUE AND FOREST DEPARTMENT | included even in the family unit in terms of the definition contained under Section 4, which reads as under: Section 4 - Land held by family unit (1) All land held by each member of a family unit, whether jointly or separately, shall for the purposes of determining the ceiling area of the family unit, be deemed to be held by the family unit. Explanation :- A family unit means,- (a) a person and his spouse (or more than one spouse) and their minor sons and minor unmarried daughters, if any; or (b) where any spouse is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters; or (c) where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses. (2) For the purposes of this section, all declarations of dissolution of marriage made by a Court after the 26th day of September, 1970, and all dissolutions of marriage by custom, or duly made, pronounced or declared on or after that date shall, for the purposes of determining the ceiling area to be held by a family unit, be ignored; and accordingly, the land held by each spouse shall be taken into consideration for that purpose, as if no dissolution had taken place. But, if a proceeding for dissolution of marriage has commenced before any Court before the aforesaid date, then the dissolution of marriage shall have full effect (whether the marriage is dissolved before or after that date), and shall be taken into consideration in determining the ceiling area of a family unit. The question of including the daughters would only arise if the document of partition deed was found to be fraudulent. Thus, for this reason also, the property cannot be included and clubbed with the land of late Vithaldas. 39. As observed above, the form of the document is not important in this behalf. Such provision can be made in a partition deed. It may be in the nature of a gift. So what? None of the members of the family have ever sought to assail or challenge the same. It is with the consensus of the family, apart from the legality of the same. The judgment of the Kerala High Court in Ponnu & Anr. v. Taluk Land Board, Chittur & Ors. (1981) KLT 780 may also be referred to, where, while dealing with the issue of a ceiling case, the conferring of rights on the son, under a partition deed, was held to be valid as being capable of being construed as a gift. The provisions of Section 122 of the Transfer of Property Act, 1882 (hereinafter referred to as the TP Act), read with Section 123, were discussed. A gift, being a transfer of property made voluntarily and without consideration, has to be made by a registered instrument. A gift is essentially a transfer. Thus, even if there were no pre-existing rights, it could be a valid gift, so long as the said requirements are met. In the facts of that case, the partition deed was not even between the joint owners or co-owners, but between the persons who owned the land exclusively and another person who held no existing title or right. It was held that a tribunal could go behind and look at the real nature of the transaction. Reliance was placed on Made Gouda v. Chenne Gowda, AIR 1925 Mad 1174 where a person who was not a co-owner was also a party to a transaction, and it was held that the transaction in regard to that particular item of property was really a gift and, thus, the requirements of a valid gift deed should be met. Similarly, in Ramaswami Pattamali v. Lakshmi AIR 1962 Ker 313 , on a proper understanding of a transaction, the document was construed as a composite deed of partition and assignment. Also, in Namburi Basava Subrahmanyam v. Alapati Hymavathi & Ors. (1996) 9 SCC 388 , while deciding whether the document in question was a will or a settlement, it was held held that the nomenclature of the document is not conclusive, and instead its substance would be determinative . In a nutshell, the view is that too much importance should not be attached to the nomenclature of a document and one can look behind the façade of the document to decipher the true nature of the transaction. 40. The aforesaid enunciation of the law reflects the correct legal position. In the given facts of the case it is not in dispute that the Deed was a registered document. Thus, even if one construes it as a partition- cum-gift deed, it would make no difference as the requirements of a gift deed, under Sections 122 & 123 of the TP Act stand satisfied. 41. Legal position in the context of the facts of the present case, thus, show that even if the document is effectively a gift deed, and Hindu Law permits the making of a provision for the daughter for her marriage, the execution of a partition deed, which has the effect of such a gift would not nullify the effect of the deed. This is so as a provision made for the daughter out of the ancestral property would be in compliance of the pious obligation. 42. In the end, it may be noted that the only aspect on which the debate occurred was the share of the two elder daughters, and the right to retain the land as their separate land, without it being adjusted with the lands of late Vithaldas. The findings above, thus, lead to the conclusion that the view taken by the SDO vide order dated 7.5.1984, regarding the land of the two elder daughters, is the correct view, and the subsequent view by the appellate authority faulted on more than one reason, as mentioned aforesaid. The further imprimatur of that view by the learned Single Judge and the Division Bench of the High Court, thus, also cannot be sustained. | 1[ds]19. The legislation in question is a beneficial piece of legislation and, indeed, must be given the widest amplitude, the object being to distribute land among the landless. The preamble quoted aforesaid sets forth the object of the said Act. But, it is equally true that in giving wider amplitude to such legislation, it cannot be that the Court interprets the words of the statute beyond its plain reading reflecting the intent of the legislation. A preamble has its limitations insofar as being treated as an aid for the interpretation of a statute. It cannot restrict or enlarge the provisions of the Act.(Raymond Ltd. v. State of Chattisgarh (2007) 3 SCC 79 ; State of West Bengal v. Union of India AIR 1963 SC 1241 ) Thus, the provisions have to be read, to see whether there is any ambiguity, requiring any further aid for construction of those sections, or whether they are explicit and clear in their meaning.(The Sussex Peerage Case (1844) 11 Cl & Fin 85 (HL).)20. On a reading of the provisions of Chapter III, including Sections 8, 10 & 11 of the said Act, there is no ambiguity as would require any aid to construct the meaning of those Sections21. The commencement date would be the date from which the provisions would come into force. However, the amendment of 1972 created a deemed fiction by inserting the provision for setting at naught transactions that may have occurred on a prior date, i.e., from 26.9.1970. The result is that the transactions or transfers in this window of about five years would also be hit by the provisions of the said Act insofar as the determination of surplus land is concerned. The object was to prevent circumvention by dubious and indirect methods.(Gurdit Singh v State of Punjab (1974) 2 SCC 260 )This is the view also adopted by this Court in Gurdit Singh v. State of Punjab, but then this Court had gone on to observe that that was no reason why a construction should be put on the Section which its language could hardly bear. The legislation in question in Gurdit Singh v. State of Punjab was a similar one, The Pepsu Tenancy and Agricultural Lands Act, 1955. It would be difficult to accept and countenance a situation where, irrespective of limitations imposed in considering the past time period, any transaction could be so assailed. In the wisdom of the legislature, the window of five years is provided as sufficient for scrutinizing transactions which could be called dubious and indirect methods to evade the result of the said ActThus, once again, it is clearly stated that the lands transferred between the period 26.9.1970 and the commencement date (2.10.1975) is what is to be ignored in calculating the ceiling area22. The effect of the aforesaid provision is that any land, even if it is obtained by partition or other transfer, after the date of 26.9.1970 would be included for the purposes of calculation of surplus land, as land of the person who so transferred the same23. The legislature has also taken another caution. The second Explanation to sub-section (1) of Section 10 also provides that documents evidencing such transfer even before 26.9.1970 would not be exempted if they are not registered on or before that date, or even if they are registered after that date, they are not presented for registration on or before that date. The requirement is for the transfer document to be, both executed and presented for registration before the cut-off date. Thus, the possibility of evading the land ceiling limits by creating documents on a back date and subsequently producing them for registration is obviated24. Section 11 specifically talks about the partition deed in a similar manner and, thus, not only transfers whether by way of sale, gift, mortgage with possession, exchange, lease, assignment of land for maintenance, surrender of a tenancy or resumption of land by a landlord or any other disposition, are included, even the avenue by way of a partition deed has been shut out, unless it has been executed prior to the cut-off date. There is no doubt that in the present case, the partition deed was executed before the cut-off date of 26.9.1970 and registered even prior to that date25. On behalf of the appellants, a number of judgments have been referred to, on how a deemed fiction should be construed. Thus, a legal fiction is to be limited for the purpose for which it is created and should not be extended beyond that legitimate field Bengal Immunity Co Ltd. v. State of Bihar: (1955) 2 SCR 603 . There are a number of judgments referred to in the context of taxing statutes, but then the rules of interpretation of taxing statutes, to be construed strictly, would be different and there is no purpose in referring to these judicial pronouncements. In the context of the Kerala Land Reforms Act, 1964, the issue of legal fiction was, once again, examined Mancheri Puthusseri Ahmed v. Kuthiravattam Estate Receiver (1996) 6 SCC 185 . The same proposition was, once again, reiterated while observing that a legal fiction is not to be extended beyond the purpose for which it is created, and that it cannot be extended by importing another fiction. In the context of Section 4A of that Act, it was held to be circumscribed by express words – a mortgagee in possession was stated to be one who, for a continuous period of not less than 50 years immediately preceding the commencement of that Section held that capacity. The words immediately preceding the commencement were required to be given their ordinary and full meaning as reflecting the legislative intent and thus, only such type of cases where a mortgagee was in possession, immediately preceding the commencement of the Section, was extendable for a period of 50 years in the past alone. It was further observed as under:….However beneficial may be the scope and ambit of the legal fiction created by the legislature while enacting Section 4-A such fiction can arise only when the express language of the section laying down the conditions precedent for raising of such a fiction is complied with by the mortgagee-in-possession concerned seeking the benefit of such a deeming fiction. Such a fiction cannot be extended by the court on analogy or by addition or deleting words not contemplated by the legislature26. This judgment has found support in a subsequent judgment of this Court in Raj Kumar Johri v. State of M.P . (2002) 3 SCC 732 Thus, the aforesaid being the manner of interpreting a provision for deeming fiction, the relevant dates provided, of 26.9.1970 and 2.10.1975, giving a window of five years for the State to take action and prevent any dubious transaction during this period of time, cannot be expanded to an unlimited prior period of time27. This Court, in Uttar Chand v. State of Maharashtra, (1980) 2 SCC 292 while dealing with the very statute has opined that the cut-off date would be sacrosanct. The factual contours dealt with partition before the cut-off date, as also sale of land. Once the cut-off date is provided, it was observed that they fell completely outside the ambit of the provisions of the Act and, thus, the High Court would not be justified in presuming that the transfers made were either collusive or fraudulent28. The order passed by the competent authority, being the SDO, insofar as the two elder daughters are concerned, held in their favour as far as the lands vested in them, in pursuance of the Partition Deed. There was, thus, no occasion for them to file an appeal, nor did they so file an appeal. Other members of the family, who filed the appeal, did not implead them as parties. Once again, naturally so, as they would not be the interested parties, or even pro forma parties in that behalf. However, once the State decided to file cross-objections and, in that, impugned even that portion of the order of the SDO which held in favour of the two elder daughters, there is no hesitation in stating that they were necessary parties to those proceedings. It is no answer to say that since the effect of the land ceiling would be to restrict the area of their father, late Vithaldas, it is for Vithaldas to see how he can benefit his daughters. This fundamental defect cannot be cured in the subsequent proceedings, as the right of appeal is a statutory right and an important one. This aforesaid view is reinforced by a catena of judicial pronouncements. It has been held that the Code of Civil Procedure, 1908 does not contemplate filing of cross-objections against a party who is not a party to the appealRajendra Nath Chatterjee v. Moheshata Debi AIR 1926 Cal 533 . In case such objections have to be filed two distinct operations are necessary. He must implead the persons as parties qua whom he intends to file cross-objections then he must file the memorandum of cross-objections Venkatapathi v. Veerayya AIR (30) 1943 Madras 609 . The position would be no different qua a judicial or quasi-judicial authority as a party to be effected must get a right of hearing Udit Narayan Singh Malpharia v. Additional Member, Board of Revenue, Bihar AIR 1963 SC 786 (WS) . Thus, unqualified imprimatur can be lent to this view29. Thus, for the aforesaid reason also the cross-objection could not have disturbed the status of the two elder daughters30. It has already been observed that non-impleadment of the two elder daughters would be fatal to the appellate proceedings. But, they are fatal for more than that reason. In fact, the view taken by both the learned Single Judge and the Division Bench would equally fall foul of the legal treatise, enunciating the rights of an unmarried daughter. The view taken is that since these lands were given to minor unmarried daughters, they having no share in the HUF property, such grant is contrary to law at that point of time31. It may be noticed, of course, that the lis has been pending, and the current scenario is one where even daughters have been given rights in the ancestral/HUF property, in terms of the amendment made to Section 6 of the Hindu Succession Act, 1956. The State of Maharashtra, where the land is located was a step ahead inasmuch as vide Maharashtra Act 39 of 1994, which was brought into force on 22.6.1994, such rights were conferred on women by making them also a coparcener by birth. However, even on the date when the Partition Deed was executed, the legal position was not as has been enunciated36. The legal view, thus, is verya. A provision for marriage of unmarried daughters can be made out of ancestral propertyb. Such provision can be made before, at the time, or even after the marriagec. The provision is being made out of pious obligation, though the right of women got diluted over a period of time. However, with the amendment to the Hindu Succession Act, in 2005, a specific right is now conferred on women to get a share on partition of ancestral property, including the right to claim partition. As mentioned above this change was brought about in Maharashtra in 1994, itself37. If the facts of the present case are averted to, the aforesaid is exactly what has been done under the Partition Deed. A provision was made for the marriage of the daughters. In fact, the provision is for education and marriage purposes. In the context of where the society is today, such an endeavour should be commended as salutary, rather than be frowned upon. It was sustainable in law then, and it is more than just merely sustainable in law now. Thus, there is no doubt that there was nothing prohibiting such a provision from being made. If the law permits so, it can hardly be called fraudulent. Thus, the very premise of allowing the cross-objection has no sustenance in law38. It may also be noticed the fact that the two elder daughters, whose rights have been debated actually, even attained majority before the commencement date, i.e., they were major unmarried daughters on the date when the amendments came into force. They were, thus, not included even in the family unit in terms of the definition contained under Section 4,The question of including the daughters would only arise if the document of partition deed was found to be fraudulent. Thus, for this reason also, the property cannot be included and clubbed with the land of late Vithaldas39. As observed above, the form of the document is not important in this behalf. Such provision can be made in a partition deed. It may be in the nature of a gift. So what? None of the members of the family have ever sought to assail or challenge the same. It is with the consensus of the family, apart from the legality of the sameIn a nutshell, the view is that too much importance should not be attached to the nomenclature of a document and one can look behind the façade of the document to decipher the true nature of the transaction40. The aforesaid enunciation of the law reflects the correct legal position. In the given facts of the case it is not in dispute that the Deed was a registered document. Thus, even if one construes it as a partition- cum-gift deed, it would make no difference as the requirements of a gift deed, under Sections 122 & 123 of the TP Act stand satisfied41. Legal position in the context of the facts of the present case, thus, show that even if the document is effectively a gift deed, and Hindu Law permits the making of a provision for the daughter for her marriage, the execution of a partition deed, which has the effect of such a gift would not nullify the effect of the deed. This is so as a provision made for the daughter out of the ancestral property would be in compliance of the pious obligation42. In the end, it may be noted that the only aspect on which the debate occurred was the share of the two elder daughters, and the right to retain the land as their separate land, without it being adjusted with the lands of late Vithaldas. The findings above, thus, lead to the conclusion that the view taken by the SDO vide order dated 7.5.1984, regarding the land of the two elder daughters, is the correct view, and the subsequent view by the appellate authority faulted on more than one reason, as mentioned aforesaid. The further imprimatur of that view by the learned Single Judge and the Division Bench of the High Court, thus, also cannot be sustained | 1 | 8,795 | 2,758 | ### Instruction:
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included even in the family unit in terms of the definition contained under Section 4, which reads as under: Section 4 - Land held by family unit (1) All land held by each member of a family unit, whether jointly or separately, shall for the purposes of determining the ceiling area of the family unit, be deemed to be held by the family unit. Explanation :- A family unit means,- (a) a person and his spouse (or more than one spouse) and their minor sons and minor unmarried daughters, if any; or (b) where any spouse is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters; or (c) where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses. (2) For the purposes of this section, all declarations of dissolution of marriage made by a Court after the 26th day of September, 1970, and all dissolutions of marriage by custom, or duly made, pronounced or declared on or after that date shall, for the purposes of determining the ceiling area to be held by a family unit, be ignored; and accordingly, the land held by each spouse shall be taken into consideration for that purpose, as if no dissolution had taken place. But, if a proceeding for dissolution of marriage has commenced before any Court before the aforesaid date, then the dissolution of marriage shall have full effect (whether the marriage is dissolved before or after that date), and shall be taken into consideration in determining the ceiling area of a family unit. The question of including the daughters would only arise if the document of partition deed was found to be fraudulent. Thus, for this reason also, the property cannot be included and clubbed with the land of late Vithaldas. 39. As observed above, the form of the document is not important in this behalf. Such provision can be made in a partition deed. It may be in the nature of a gift. So what? None of the members of the family have ever sought to assail or challenge the same. It is with the consensus of the family, apart from the legality of the same. The judgment of the Kerala High Court in Ponnu & Anr. v. Taluk Land Board, Chittur & Ors. (1981) KLT 780 may also be referred to, where, while dealing with the issue of a ceiling case, the conferring of rights on the son, under a partition deed, was held to be valid as being capable of being construed as a gift. The provisions of Section 122 of the Transfer of Property Act, 1882 (hereinafter referred to as the TP Act), read with Section 123, were discussed. A gift, being a transfer of property made voluntarily and without consideration, has to be made by a registered instrument. A gift is essentially a transfer. Thus, even if there were no pre-existing rights, it could be a valid gift, so long as the said requirements are met. In the facts of that case, the partition deed was not even between the joint owners or co-owners, but between the persons who owned the land exclusively and another person who held no existing title or right. It was held that a tribunal could go behind and look at the real nature of the transaction. Reliance was placed on Made Gouda v. Chenne Gowda, AIR 1925 Mad 1174 where a person who was not a co-owner was also a party to a transaction, and it was held that the transaction in regard to that particular item of property was really a gift and, thus, the requirements of a valid gift deed should be met. Similarly, in Ramaswami Pattamali v. Lakshmi AIR 1962 Ker 313 , on a proper understanding of a transaction, the document was construed as a composite deed of partition and assignment. Also, in Namburi Basava Subrahmanyam v. Alapati Hymavathi & Ors. (1996) 9 SCC 388 , while deciding whether the document in question was a will or a settlement, it was held held that the nomenclature of the document is not conclusive, and instead its substance would be determinative . In a nutshell, the view is that too much importance should not be attached to the nomenclature of a document and one can look behind the façade of the document to decipher the true nature of the transaction. 40. The aforesaid enunciation of the law reflects the correct legal position. In the given facts of the case it is not in dispute that the Deed was a registered document. Thus, even if one construes it as a partition- cum-gift deed, it would make no difference as the requirements of a gift deed, under Sections 122 & 123 of the TP Act stand satisfied. 41. Legal position in the context of the facts of the present case, thus, show that even if the document is effectively a gift deed, and Hindu Law permits the making of a provision for the daughter for her marriage, the execution of a partition deed, which has the effect of such a gift would not nullify the effect of the deed. This is so as a provision made for the daughter out of the ancestral property would be in compliance of the pious obligation. 42. In the end, it may be noted that the only aspect on which the debate occurred was the share of the two elder daughters, and the right to retain the land as their separate land, without it being adjusted with the lands of late Vithaldas. The findings above, thus, lead to the conclusion that the view taken by the SDO vide order dated 7.5.1984, regarding the land of the two elder daughters, is the correct view, and the subsequent view by the appellate authority faulted on more than one reason, as mentioned aforesaid. The further imprimatur of that view by the learned Single Judge and the Division Bench of the High Court, thus, also cannot be sustained.
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1926 Cal 533 . In case such objections have to be filed two distinct operations are necessary. He must implead the persons as parties qua whom he intends to file cross-objections then he must file the memorandum of cross-objections Venkatapathi v. Veerayya AIR (30) 1943 Madras 609 . The position would be no different qua a judicial or quasi-judicial authority as a party to be effected must get a right of hearing Udit Narayan Singh Malpharia v. Additional Member, Board of Revenue, Bihar AIR 1963 SC 786 (WS) . Thus, unqualified imprimatur can be lent to this view29. Thus, for the aforesaid reason also the cross-objection could not have disturbed the status of the two elder daughters30. It has already been observed that non-impleadment of the two elder daughters would be fatal to the appellate proceedings. But, they are fatal for more than that reason. In fact, the view taken by both the learned Single Judge and the Division Bench would equally fall foul of the legal treatise, enunciating the rights of an unmarried daughter. The view taken is that since these lands were given to minor unmarried daughters, they having no share in the HUF property, such grant is contrary to law at that point of time31. It may be noticed, of course, that the lis has been pending, and the current scenario is one where even daughters have been given rights in the ancestral/HUF property, in terms of the amendment made to Section 6 of the Hindu Succession Act, 1956. The State of Maharashtra, where the land is located was a step ahead inasmuch as vide Maharashtra Act 39 of 1994, which was brought into force on 22.6.1994, such rights were conferred on women by making them also a coparcener by birth. However, even on the date when the Partition Deed was executed, the legal position was not as has been enunciated36. The legal view, thus, is verya. A provision for marriage of unmarried daughters can be made out of ancestral propertyb. Such provision can be made before, at the time, or even after the marriagec. The provision is being made out of pious obligation, though the right of women got diluted over a period of time. However, with the amendment to the Hindu Succession Act, in 2005, a specific right is now conferred on women to get a share on partition of ancestral property, including the right to claim partition. As mentioned above this change was brought about in Maharashtra in 1994, itself37. If the facts of the present case are averted to, the aforesaid is exactly what has been done under the Partition Deed. A provision was made for the marriage of the daughters. In fact, the provision is for education and marriage purposes. In the context of where the society is today, such an endeavour should be commended as salutary, rather than be frowned upon. It was sustainable in law then, and it is more than just merely sustainable in law now. Thus, there is no doubt that there was nothing prohibiting such a provision from being made. If the law permits so, it can hardly be called fraudulent. Thus, the very premise of allowing the cross-objection has no sustenance in law38. It may also be noticed the fact that the two elder daughters, whose rights have been debated actually, even attained majority before the commencement date, i.e., they were major unmarried daughters on the date when the amendments came into force. They were, thus, not included even in the family unit in terms of the definition contained under Section 4,The question of including the daughters would only arise if the document of partition deed was found to be fraudulent. Thus, for this reason also, the property cannot be included and clubbed with the land of late Vithaldas39. As observed above, the form of the document is not important in this behalf. Such provision can be made in a partition deed. It may be in the nature of a gift. So what? None of the members of the family have ever sought to assail or challenge the same. It is with the consensus of the family, apart from the legality of the sameIn a nutshell, the view is that too much importance should not be attached to the nomenclature of a document and one can look behind the façade of the document to decipher the true nature of the transaction40. The aforesaid enunciation of the law reflects the correct legal position. In the given facts of the case it is not in dispute that the Deed was a registered document. Thus, even if one construes it as a partition- cum-gift deed, it would make no difference as the requirements of a gift deed, under Sections 122 & 123 of the TP Act stand satisfied41. Legal position in the context of the facts of the present case, thus, show that even if the document is effectively a gift deed, and Hindu Law permits the making of a provision for the daughter for her marriage, the execution of a partition deed, which has the effect of such a gift would not nullify the effect of the deed. This is so as a provision made for the daughter out of the ancestral property would be in compliance of the pious obligation42. In the end, it may be noted that the only aspect on which the debate occurred was the share of the two elder daughters, and the right to retain the land as their separate land, without it being adjusted with the lands of late Vithaldas. The findings above, thus, lead to the conclusion that the view taken by the SDO vide order dated 7.5.1984, regarding the land of the two elder daughters, is the correct view, and the subsequent view by the appellate authority faulted on more than one reason, as mentioned aforesaid. The further imprimatur of that view by the learned Single Judge and the Division Bench of the High Court, thus, also cannot be sustained
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PUNJAB FINANCIAL CORPORATION Vs. M/S PAULBRO LEATHERS PVT. LTD | Abhay Manohar Sapre, J. 1. Leave granted.2. These appeals are directed againstthe final judgment and order dated 14.11.2014 passed by the High Court of Punjab & Haryana at Chandigarh in CM No.12188/2014 inC.W.P.No.15042/2003 and final order dated 01.08.2013 in CWP No.15042/2003(O&M).3.Few facts need mention infra for the disposal of these appeals that involve a short issue.4. The respondent had taken some loan from the appellantPunjab Financial Corporation (hereinafter referred to as“the Corporation”)for their business. It is not in dispute that the respondent failed to re pay the loan in terms of the loan agreement and thus became a defaulter.5. The matter was accordingly settled in terms of one time settlement policy of the appellant Corporation on 01.04.2003. It is also not in dispute that while settling the dispute,by the order of the High Court dated 27.04.2006, the matter was referred to the Charted AccountantDavinder S. Jaaj to determine the remaining outstanding balance amount payable by the respondent against their loan account to the appellantCorporation and submit a report. It is AnnexureP5.6. Since the dispute arose even after settlement between the parties as to what is the actual and precise liability determined and was eventually worked out between the parties in the settlement and against the determined liability, how much amount the respondent has paid, the appellant, as per their calculation, raised a demand of Rs.49,86,713/ (AnnexureP11 to the writ petition) on the respondent and called upon them to pay the said amount. The respondent, however, denied their liability.7. It is this demand, which gave rise to filing of the writ petition by the respondent in the High Court against the appellant out of which these appeals arise and sought its quashing. The appellant contested the writ petition.8. The High Court, by impugned order dated 01.08.2013, allowed the writ petition holding that since the parties had consented to the settlement and pursuant thereto the entire exercise was carried out for working out the liability, the appellant was not justified in raising the demand in question on the respondent.9. The appellant felt aggrieved and filed an application for review of the order dated 01.08.2013 but the same was also dismissed by order 14.11.2014 on the ground that since the appellant Corporation did not raise any objection before the appointed Charted Accountant and nor to the respondent and hence at such belated stage, the they are not permitted to raise any objection on such question and nor to raise any demand.10. It is against these two orders, the appellant Corporation felt aggrieved and filed the present appeals by way of special leave in this Court.11. The questions, which arise for consideration in these appeals, are whether the High Court was justified in allowing the respondents writ petition and was, in consequence, justified in quashing the demand (AnnexureP11 to the writ petition) raised by the appellant on the respondent; and second, whether the High Court was justified in dismissing the application for review filed by the appellant against the order allowing the respondents writ petition.12. Heard learned counsel for the parties.13. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals and remand the case to the High Court for deciding the writ petition afresh on merits in accordance with law.14. The need to remand the case to the High Court has occasioned because we find that the High Court essentially proceeded to allow the writ petition on the ground that since the whole issue was settled with consent and no objection was raised by the appellant at any point of time, the issue now can not be allowed to be reopened at this stage.15. Wedonot agree with this reasoning of the High Court for more than one reason.16. First, parties only agreed to settle the dispute in terms of one time settlement policy of the appellantCorporation and, therefore, one Chartered Accountant was appointed by the Court to go into the question and submit his report.17. Second, if there was some dispute or ambiguity or clarification needed in the report of the Chartered Accountant with a view to decide the actualliability of therespondentand howmuch amount was paid by the respondent to the appellate against the said settlement; and lastly, the manner in which the liability was worked out because the Corporation was saying one thing and the respondent was saying other, then the issue could still be refereed to any other Chartered Accountant of repute. It is for the reason that this was the new dispute, which had arisen out of the terms of the settlement, and hence it had to be settled on its own merits in accordance with law.18. The issue, which was raised by the appellant by raising a demand, was, therefore, required to be examined on its merits before quashing the huge demand which was raised by the appellant against the respondent. In other words, it was necessary for the High Court to record a categorical finding on the issue as to how and on what basis the respondent has complied with the terms of settlement and has thus discharged its entire liability.It was not done. | 1[ds]14. The need to remand the case to the High Court has occasioned because we find that the High Court essentially proceeded to allow the writ petition on the ground that since the whole issue was settled with consent and no objection was raised by the appellant at any point of time, the issue now can not be allowed to beat this stage.not agree with this reasoning of the High Court for more than one reason.16. First, parties only agreed to settle the dispute in terms of one time settlement policy of theand, therefore, one Chartered Accountant was appointed by the Court to go into the question and submit his report.17. Second, if there was some dispute or ambiguity or clarification needed in the report of the Chartered Accountant with a view to decide the actualliability of thehow much amountwas paid by the respondent to the appellate against the said settlement; and lastly, the manner in which the liability was worked out because the Corporation was saying one thing and the respondent was saying other, then the issue could still be refereed to any other Chartered Accountant of repute. It is for the reason that this was the new dispute, which had arisen out of the terms of the settlement, and hence it had to be settled on its own merits in accordance with law.18. The issue, which was raised by the appellant by raising a demand, was, therefore, required to be examined on its merits before quashing the huge demand which was raised by the appellant against the respondent. In other words, it was necessary for the High Court to record a categorical finding on the issue as to how and on what basis the respondent has complied with the terms of settlement and has thus discharged its entire liability.It was not done. | 1 | 942 | 330 | ### 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:
Abhay Manohar Sapre, J. 1. Leave granted.2. These appeals are directed againstthe final judgment and order dated 14.11.2014 passed by the High Court of Punjab & Haryana at Chandigarh in CM No.12188/2014 inC.W.P.No.15042/2003 and final order dated 01.08.2013 in CWP No.15042/2003(O&M).3.Few facts need mention infra for the disposal of these appeals that involve a short issue.4. The respondent had taken some loan from the appellantPunjab Financial Corporation (hereinafter referred to as“the Corporation”)for their business. It is not in dispute that the respondent failed to re pay the loan in terms of the loan agreement and thus became a defaulter.5. The matter was accordingly settled in terms of one time settlement policy of the appellant Corporation on 01.04.2003. It is also not in dispute that while settling the dispute,by the order of the High Court dated 27.04.2006, the matter was referred to the Charted AccountantDavinder S. Jaaj to determine the remaining outstanding balance amount payable by the respondent against their loan account to the appellantCorporation and submit a report. It is AnnexureP5.6. Since the dispute arose even after settlement between the parties as to what is the actual and precise liability determined and was eventually worked out between the parties in the settlement and against the determined liability, how much amount the respondent has paid, the appellant, as per their calculation, raised a demand of Rs.49,86,713/ (AnnexureP11 to the writ petition) on the respondent and called upon them to pay the said amount. The respondent, however, denied their liability.7. It is this demand, which gave rise to filing of the writ petition by the respondent in the High Court against the appellant out of which these appeals arise and sought its quashing. The appellant contested the writ petition.8. The High Court, by impugned order dated 01.08.2013, allowed the writ petition holding that since the parties had consented to the settlement and pursuant thereto the entire exercise was carried out for working out the liability, the appellant was not justified in raising the demand in question on the respondent.9. The appellant felt aggrieved and filed an application for review of the order dated 01.08.2013 but the same was also dismissed by order 14.11.2014 on the ground that since the appellant Corporation did not raise any objection before the appointed Charted Accountant and nor to the respondent and hence at such belated stage, the they are not permitted to raise any objection on such question and nor to raise any demand.10. It is against these two orders, the appellant Corporation felt aggrieved and filed the present appeals by way of special leave in this Court.11. The questions, which arise for consideration in these appeals, are whether the High Court was justified in allowing the respondents writ petition and was, in consequence, justified in quashing the demand (AnnexureP11 to the writ petition) raised by the appellant on the respondent; and second, whether the High Court was justified in dismissing the application for review filed by the appellant against the order allowing the respondents writ petition.12. Heard learned counsel for the parties.13. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals and remand the case to the High Court for deciding the writ petition afresh on merits in accordance with law.14. The need to remand the case to the High Court has occasioned because we find that the High Court essentially proceeded to allow the writ petition on the ground that since the whole issue was settled with consent and no objection was raised by the appellant at any point of time, the issue now can not be allowed to be reopened at this stage.15. Wedonot agree with this reasoning of the High Court for more than one reason.16. First, parties only agreed to settle the dispute in terms of one time settlement policy of the appellantCorporation and, therefore, one Chartered Accountant was appointed by the Court to go into the question and submit his report.17. Second, if there was some dispute or ambiguity or clarification needed in the report of the Chartered Accountant with a view to decide the actualliability of therespondentand howmuch amount was paid by the respondent to the appellate against the said settlement; and lastly, the manner in which the liability was worked out because the Corporation was saying one thing and the respondent was saying other, then the issue could still be refereed to any other Chartered Accountant of repute. It is for the reason that this was the new dispute, which had arisen out of the terms of the settlement, and hence it had to be settled on its own merits in accordance with law.18. The issue, which was raised by the appellant by raising a demand, was, therefore, required to be examined on its merits before quashing the huge demand which was raised by the appellant against the respondent. In other words, it was necessary for the High Court to record a categorical finding on the issue as to how and on what basis the respondent has complied with the terms of settlement and has thus discharged its entire liability.It was not done.
### Response:
1
### Explanation:
14. The need to remand the case to the High Court has occasioned because we find that the High Court essentially proceeded to allow the writ petition on the ground that since the whole issue was settled with consent and no objection was raised by the appellant at any point of time, the issue now can not be allowed to beat this stage.not agree with this reasoning of the High Court for more than one reason.16. First, parties only agreed to settle the dispute in terms of one time settlement policy of theand, therefore, one Chartered Accountant was appointed by the Court to go into the question and submit his report.17. Second, if there was some dispute or ambiguity or clarification needed in the report of the Chartered Accountant with a view to decide the actualliability of thehow much amountwas paid by the respondent to the appellate against the said settlement; and lastly, the manner in which the liability was worked out because the Corporation was saying one thing and the respondent was saying other, then the issue could still be refereed to any other Chartered Accountant of repute. It is for the reason that this was the new dispute, which had arisen out of the terms of the settlement, and hence it had to be settled on its own merits in accordance with law.18. The issue, which was raised by the appellant by raising a demand, was, therefore, required to be examined on its merits before quashing the huge demand which was raised by the appellant against the respondent. In other words, it was necessary for the High Court to record a categorical finding on the issue as to how and on what basis the respondent has complied with the terms of settlement and has thus discharged its entire liability.It was not done.
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M/S Japan Airlines Co.Ltd Vs. Commr.Of Income Tax,New Delhi | those standards are to be adhered to. Further, there has to be proper runway lighting, runway safety area, runway markings etc. Technical specifications for such lighting, safety area and markings are stipulated which have to be provided. Insofar as runway lighting is concerned which is essentially used at airports that allow night landings, requires that there has to be Runway End Identification Lights, Runway End Lights, Runway Edge Lights, Runway Centerline Lighting System, Touchdown Zone Lights, Taxiway Centerline Lead-Off Lights, Taxiway Centerline Lead-On Lights, Land and Hold Short Lights, Approach Lighting System etc. Technical specifications for all these lights have to be complied with. Same applies to runway markings. Runway markings and signs on most large runways include Threshold, Touch Down Zone, Fixed Distance Marks, Center Line etc. and all these have specific purpose. So much so, designs and quality of pavement on these runways are also to be taken compliant. All these technical specifications keep in mind the basic fact, namely, on landing the aircraft is light on fuel and usually less than 5% of the weight of the aircraft touches the runway in one go. On take-off the aircraft is heavy but as the aircraft accelerates the weight gradually moves from the wheels to the wings. It is while the aircraft is being loaded and taxiing prior to departure, that the apron experience significant loads from aircraft weight. We have emphasised the technological aspects of these runways in some detail to highlight the precision with which designing and engineering goes into making these runways to be fool proof for safety purposes. The purpose is to show that the AAI is providing all these facilities for landing and take-off of an aircraft and in this whole process, use of the land pails into insignificance. What is important is that the charges payable are for providing of these facilities. 21. In fact, the charges which are taken from the aircrafts for landing and even for parking of the aircrafts are not dependent upon the use of the land. On the contrary, the protocol prescribes a detailed methodology of fixing these charges. Chapter 4 of Airport Economics Manual issued by International Civil Aviation Organization deals with Determine the cost basis for charging purposes. The charges on air-traffic which includes Landing Charges, Lighting Charges, Approach and Aerodrome Control Charges, Aircraft Parking Charges, Aerobridge Charges, Hangar Charges, Passenger Service Charges, Cargo Charges etc. are to be fixed applying the formulae stated therein. A reading thereof would clearly point out the cost analysis which is to be done for fixing these charges. Thus, when the airlines pay for these charges, treating such charges as charges for use of land would be adopting a totally naïve and simplistic approach which is far away from the reality. We have to keep in mind the substance behind such charges. When matter is looked into from this angle, keeping in view the full and larger picture in mind, it becomes very clear that the charges are not for use of land per se and, therefore, it cannot be treated as rent within the meaning of Section 194-I of the Act.22. We, therefore, are of the considered opinion that the view taken by the Madras High Court is correct and we are unable to subscribe to the view taken by Delhi High Court in United Airlines case. The judgment in United Airlines case as well as the impugned judgment of the Delhi High Court are accordingly over-ruled. 23. At this stage, we would like to make one comment about the judgment of the Madras High Court. Madras High Court has given one more reason in support of its view that the charges paid by the Airlines to the AAI do not come within the definition of the rent as defined under Section 194-I. The High Court has held that the words any other agreement or arrangement for the use of any land or any building have to be read ejusdem generis and it should take it colour from the earlier portion of the definition namely “lease, sub-lease and tenancy”. Thereby, it has tried to limit the ambit of words any other agreement or arrangement. This reasoning is clearly fallacious. A bare reading of the definition of rent contained in explanation to Section 194-I would make it clear that in the first place, the payment, by whatever name called, under any lease, sub-lease, tenancy which is to be treated as rent. That is rent in traditional sense. However, second part is independent of the first part which gives much wider scope to the term rent. As per this whenever payment is made for use of any land or any building by any other agreement or arrangement, that is also to be treated as rent. Once such a payment is made for use of land or building under any other agreement or arrangement, such agreement or arrangement gives the definition of rent of very wide connotation. To that extent, High Court of Delhi appears to be correct that the scope of definition of rent under this definition is very wide and not limited to what is understood as rent in common parlance. It is a different matter that the High Court of Delhi did not apply this definition correctly to the present case as it failed to notice that in substance the charges paid by these airlines are not for use of land but for other facilities and services wherein use of the land was only minor and insignificant aspect. Thus it did not correctly appreciate the nature of charges that are paid by the airlines for landing and parking charges which is not, in substance, for use of land but for various other facilities extended by the AAI to the airlines. Use of land, in the process, become incidental. Once it is held that these charges are not covered by Section 194-I of the Act, it is not necessary to go into the scope of Section 194-C of the Act. | 1[ds]of the Act, which was inserted by Finance Act, 1994 w.e.f. June 01, 1994, provides for deduction of tax at source in respect of payment of rent by any person, other than an individual and a hindu undivided family, at the time of payment or credit, whichever is earlier. The rate at which deduction of tax is to be made at source is 20%. There have been amendments in this Section in the years 2002, 2007 and 2009 with these amendments, the scope of this Section has been enlarged. However, as the assessement year in question is prior to 2002 and otherwise also, the later amendments have no bearing insofar as the assessees are concerned, it is not necessary to spell out the amendments made to this Section.14. From the reading of this Section, it becomes clear that TDS is to be made on the rent. The expression rent is given much wider meaning under this provision than what is normally known in common parlance. In the first instance, it means any payment which is made under any lease,tenancy. Once the payment is made under lease,or tenancy, the nomenclature which is given is inconsequential. Such payment under lease,and/or tenancy would be treated as rent. In the second place, such a payment made even under any other agreement or arrangement for the use of any land or any building would also be treated as rent. Whether or not such building is owned by the payee is not relevant. The expressions any payment, by whatever name called and any other agreement or arrangement have the widest import. Likewise, payment made for the use of any land or any building widens the scope of the proviso.15. In the present case, we find that these Airlines are allowed to land andtheir Aircrafts at IGIA for which landing fee is charged. Likewise, they are allowed to park their Aircrafts at IGIA for which parking fee is charged. It is done under an agreement and/or arrangement with AAI. The moot question is as to whether landing andWe are convinced that the charges which are fixed by the AAI for landing andservices as well as for parking of aircrafts are not for the use of the land. That would be too simplistic an approach, ignoring other relevant details which would amply demonstrate that these charges are for services and facilities offered in connection with the aircraft operation at the airport. To point out at the outset, these services include providing of air traffic services, ground safety services, aeronautical communication facilities, installation and maintenance of navigational aids and meteorological services at the airport.19. Before the High Court of Madras, the assessee had filed the material in the form of Airport Economics Manual, the International Airports Transport Agreement (IATA) to the contracting states on charges for airport and air navigation services. This material which was shown for our perusal as well, would candidly show that there are various international protocols which mandate all such authorities manning and managing these airports to construct the airports of desired standards which are stipulated in the protocols. The services which are required to be provided by these authorities, like AAI, are aimed at passengers safety as well as on safe landing and parking of the aircrafts. Therefore, it is not mere use of the land. On the contrary, it is the facilities, that are to be compulsarily offered by the AAI in tune with the requirements of the protocol, which is the primary focus.In fact, the charges which are taken from the aircrafts for landing and even for parking of the aircrafts are not dependent upon the use of the land. On the contrary, the protocol prescribes a detailed methodology of fixing these charges. Chapter 4 of Airport Economics Manual issued by International Civil Aviation Organization deals with Determine the cost basis for charging purposes. The charges onwhich includes Landing Charges, Lighting Charges, Approach and Aerodrome Control Charges, Aircraft Parking Charges, Aerobridge Charges, Hangar Charges, Passenger Service Charges, Cargo Charges etc. are to be fixed applying the formulae stated therein. A reading thereof would clearly point out the cost analysis which is to be done for fixing these charges. Thus, when the airlines pay for these charges, treating such charges as charges for use of land would be adopting a totally naïve and simplistic approach which is far away from the reality. We have to keep in mind the substance behind such charges. When matter is looked into from this angle, keeping in view the full and larger picture in mind, it becomes very clear that the charges are not for use of land per se and, therefore, it cannot be treated as rent within the meaning of Sectionof the Act.22. We, therefore, are of the considered opinion that the view taken by the Madras High Court is correct and we are unable to subscribe to the view taken by Delhi High Court in United Airlines case. The judgment in United Airlines case as well as the impugned judgment of the Delhi High Court are accordingly over-ruled. | 1 | 4,197 | 944 | ### 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:
those standards are to be adhered to. Further, there has to be proper runway lighting, runway safety area, runway markings etc. Technical specifications for such lighting, safety area and markings are stipulated which have to be provided. Insofar as runway lighting is concerned which is essentially used at airports that allow night landings, requires that there has to be Runway End Identification Lights, Runway End Lights, Runway Edge Lights, Runway Centerline Lighting System, Touchdown Zone Lights, Taxiway Centerline Lead-Off Lights, Taxiway Centerline Lead-On Lights, Land and Hold Short Lights, Approach Lighting System etc. Technical specifications for all these lights have to be complied with. Same applies to runway markings. Runway markings and signs on most large runways include Threshold, Touch Down Zone, Fixed Distance Marks, Center Line etc. and all these have specific purpose. So much so, designs and quality of pavement on these runways are also to be taken compliant. All these technical specifications keep in mind the basic fact, namely, on landing the aircraft is light on fuel and usually less than 5% of the weight of the aircraft touches the runway in one go. On take-off the aircraft is heavy but as the aircraft accelerates the weight gradually moves from the wheels to the wings. It is while the aircraft is being loaded and taxiing prior to departure, that the apron experience significant loads from aircraft weight. We have emphasised the technological aspects of these runways in some detail to highlight the precision with which designing and engineering goes into making these runways to be fool proof for safety purposes. The purpose is to show that the AAI is providing all these facilities for landing and take-off of an aircraft and in this whole process, use of the land pails into insignificance. What is important is that the charges payable are for providing of these facilities. 21. In fact, the charges which are taken from the aircrafts for landing and even for parking of the aircrafts are not dependent upon the use of the land. On the contrary, the protocol prescribes a detailed methodology of fixing these charges. Chapter 4 of Airport Economics Manual issued by International Civil Aviation Organization deals with Determine the cost basis for charging purposes. The charges on air-traffic which includes Landing Charges, Lighting Charges, Approach and Aerodrome Control Charges, Aircraft Parking Charges, Aerobridge Charges, Hangar Charges, Passenger Service Charges, Cargo Charges etc. are to be fixed applying the formulae stated therein. A reading thereof would clearly point out the cost analysis which is to be done for fixing these charges. Thus, when the airlines pay for these charges, treating such charges as charges for use of land would be adopting a totally naïve and simplistic approach which is far away from the reality. We have to keep in mind the substance behind such charges. When matter is looked into from this angle, keeping in view the full and larger picture in mind, it becomes very clear that the charges are not for use of land per se and, therefore, it cannot be treated as rent within the meaning of Section 194-I of the Act.22. We, therefore, are of the considered opinion that the view taken by the Madras High Court is correct and we are unable to subscribe to the view taken by Delhi High Court in United Airlines case. The judgment in United Airlines case as well as the impugned judgment of the Delhi High Court are accordingly over-ruled. 23. At this stage, we would like to make one comment about the judgment of the Madras High Court. Madras High Court has given one more reason in support of its view that the charges paid by the Airlines to the AAI do not come within the definition of the rent as defined under Section 194-I. The High Court has held that the words any other agreement or arrangement for the use of any land or any building have to be read ejusdem generis and it should take it colour from the earlier portion of the definition namely “lease, sub-lease and tenancy”. Thereby, it has tried to limit the ambit of words any other agreement or arrangement. This reasoning is clearly fallacious. A bare reading of the definition of rent contained in explanation to Section 194-I would make it clear that in the first place, the payment, by whatever name called, under any lease, sub-lease, tenancy which is to be treated as rent. That is rent in traditional sense. However, second part is independent of the first part which gives much wider scope to the term rent. As per this whenever payment is made for use of any land or any building by any other agreement or arrangement, that is also to be treated as rent. Once such a payment is made for use of land or building under any other agreement or arrangement, such agreement or arrangement gives the definition of rent of very wide connotation. To that extent, High Court of Delhi appears to be correct that the scope of definition of rent under this definition is very wide and not limited to what is understood as rent in common parlance. It is a different matter that the High Court of Delhi did not apply this definition correctly to the present case as it failed to notice that in substance the charges paid by these airlines are not for use of land but for other facilities and services wherein use of the land was only minor and insignificant aspect. Thus it did not correctly appreciate the nature of charges that are paid by the airlines for landing and parking charges which is not, in substance, for use of land but for various other facilities extended by the AAI to the airlines. Use of land, in the process, become incidental. Once it is held that these charges are not covered by Section 194-I of the Act, it is not necessary to go into the scope of Section 194-C of the Act.
### Response:
1
### Explanation:
of the Act, which was inserted by Finance Act, 1994 w.e.f. June 01, 1994, provides for deduction of tax at source in respect of payment of rent by any person, other than an individual and a hindu undivided family, at the time of payment or credit, whichever is earlier. The rate at which deduction of tax is to be made at source is 20%. There have been amendments in this Section in the years 2002, 2007 and 2009 with these amendments, the scope of this Section has been enlarged. However, as the assessement year in question is prior to 2002 and otherwise also, the later amendments have no bearing insofar as the assessees are concerned, it is not necessary to spell out the amendments made to this Section.14. From the reading of this Section, it becomes clear that TDS is to be made on the rent. The expression rent is given much wider meaning under this provision than what is normally known in common parlance. In the first instance, it means any payment which is made under any lease,tenancy. Once the payment is made under lease,or tenancy, the nomenclature which is given is inconsequential. Such payment under lease,and/or tenancy would be treated as rent. In the second place, such a payment made even under any other agreement or arrangement for the use of any land or any building would also be treated as rent. Whether or not such building is owned by the payee is not relevant. The expressions any payment, by whatever name called and any other agreement or arrangement have the widest import. Likewise, payment made for the use of any land or any building widens the scope of the proviso.15. In the present case, we find that these Airlines are allowed to land andtheir Aircrafts at IGIA for which landing fee is charged. Likewise, they are allowed to park their Aircrafts at IGIA for which parking fee is charged. It is done under an agreement and/or arrangement with AAI. The moot question is as to whether landing andWe are convinced that the charges which are fixed by the AAI for landing andservices as well as for parking of aircrafts are not for the use of the land. That would be too simplistic an approach, ignoring other relevant details which would amply demonstrate that these charges are for services and facilities offered in connection with the aircraft operation at the airport. To point out at the outset, these services include providing of air traffic services, ground safety services, aeronautical communication facilities, installation and maintenance of navigational aids and meteorological services at the airport.19. Before the High Court of Madras, the assessee had filed the material in the form of Airport Economics Manual, the International Airports Transport Agreement (IATA) to the contracting states on charges for airport and air navigation services. This material which was shown for our perusal as well, would candidly show that there are various international protocols which mandate all such authorities manning and managing these airports to construct the airports of desired standards which are stipulated in the protocols. The services which are required to be provided by these authorities, like AAI, are aimed at passengers safety as well as on safe landing and parking of the aircrafts. Therefore, it is not mere use of the land. On the contrary, it is the facilities, that are to be compulsarily offered by the AAI in tune with the requirements of the protocol, which is the primary focus.In fact, the charges which are taken from the aircrafts for landing and even for parking of the aircrafts are not dependent upon the use of the land. On the contrary, the protocol prescribes a detailed methodology of fixing these charges. Chapter 4 of Airport Economics Manual issued by International Civil Aviation Organization deals with Determine the cost basis for charging purposes. The charges onwhich includes Landing Charges, Lighting Charges, Approach and Aerodrome Control Charges, Aircraft Parking Charges, Aerobridge Charges, Hangar Charges, Passenger Service Charges, Cargo Charges etc. are to be fixed applying the formulae stated therein. A reading thereof would clearly point out the cost analysis which is to be done for fixing these charges. Thus, when the airlines pay for these charges, treating such charges as charges for use of land would be adopting a totally naïve and simplistic approach which is far away from the reality. We have to keep in mind the substance behind such charges. When matter is looked into from this angle, keeping in view the full and larger picture in mind, it becomes very clear that the charges are not for use of land per se and, therefore, it cannot be treated as rent within the meaning of Sectionof the Act.22. We, therefore, are of the considered opinion that the view taken by the Madras High Court is correct and we are unable to subscribe to the view taken by Delhi High Court in United Airlines case. The judgment in United Airlines case as well as the impugned judgment of the Delhi High Court are accordingly over-ruled.
|
Harjinder Singh Vs. Punjab State Warehousing Corp | courts have come to recognize, an imperfect way of referring to the real obstacle to enforcing any kind o contractual limitation on the employers right of discharge, i.e. lack of consideration. If there is anything in contract law which seems likely to advance the present inquiry, it is the growing tendency to protect individuals from contracts of adhesion from over-reaching terms often found in standard forms of contract used by large commercial establishments. Judicial disfavour of contracts of adhesion has been said to reflect the assumed need to protect the weaker contracting part against the harshness of the common law and the abuses of freedom of contract. The same philosophy seems to provide an appropriate answer to the argument, which still seems to have some vitality, that "the servant cannot complain, as he takes the employment on the terms which are offered to him." (emphasis added) 22. In Government Branch Press v. D.B. Belliappa (1979) 1 SCC 477 , the employer invoked the theory of hire and fire by contending that the respondents appointment was purely temporary and his service could be terminated at any time in accordance with the terms and conditions of appointment which he had voluntarily accepted. While rejecting this plea as wholly misconceived, the Court observed: "It is borrowed from the archaic common law concept that employment was a matter between the master and servant only. In the first place, this rule in its original absolute form is not applicable to government servants. Secondly, even with regard to private employment, much of it has passed into the fossils of time. "This rule held the field at the time when the master and servant were taken more literally than they are now and when, as in early Roman Law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his pater familias". The overtones of this ancient doctrine are discernible in the Anglo-American jurisprudence of the 18th century and the first half of the 20th century, which rationalised the employers absolute right to discharge the employee. "Such a philosophy", as pointed out by K.K. Mathew, J. (vide his treatise: "Democracy, Equality and Freedom", p. 326). "of the employers dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers". To bring it in tune with vastly changed and changing socio-economic conditions and mores of the day, much of this old, antiquated and unjust doctrine has been eroded by judicial decisions and legislation, particularly in its application to persons in public employment, to whom the Constitutional protection of Articles 14, 15, 16 and 311 is available. The argument is therefore overruled. The doctrine of laissez faire was again rejected in Glaxo Laboratories (India) Ltd. v. Presiding Officer (1984) 1 SCC 1 , in the following words: "In the days of laissez-faire when industrial relation was governed by the harsh weighted law of hire and fire the management was the Supreme master, the relationship being referable to contract between unequals and the action of the management treated almost sacrosanct. The developing notions of social justice and the expanding horizon of socio-economic justice necessitated statutory protection to the unequal partner in the industry namely, those who invest blood and flesh against those who bring in capital. Moving from the days when whim of the employer was suprema lex, the Act took a modest step to compel by statute the employer to prescribe minimum conditions of service subject to which employment is given. The Act was enacted as its long title shows to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them. The movement was from status to contract, the contract being not left to be negotiated by two unequal persons but statutorily imposed. If his socially beneficial Act was enacted for ameliorating the conditions o the weaker partner, conditions of service prescribed thereunder must receive such interpretation as to advance the intendment underlying the Act and defeat the mischief." 23. Of late, there has been a visible shift in the courts approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalization and liberalisation are fast becoming the raison detre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganized workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman-employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer – public or private. | 1[ds]10. We have considered the respective submissions. In our opinion, the impugned order is liable to be set aside only on the ground that whileinterfering with the award of the Labour Court, the learned Single Judge did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution– Syed Yakoob v. K.S. Radhakrishnan and others, AIR 1964 SC 477 and Surya Dev Rai v. Ram Chander Rai and others 2003(6) SCC 675. In Syed Yakoobs case, this Court delineated the scope of the writ of certiorari in the followingquestion about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding; the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmad Ishaque 1955(1) SCR 1104, Nagandra Nath Bora v. Commissioner of Hills Division and Appeals Assam 1958 SCR 1240 and Kaushalya Devi v. Bachittar Singh AIR 1960 SCdoing so, the learned Single Judge failed to notice that in the reply filed on behalf of the corporation before the Labour Court, the appellants claim for reinstatement with back wages was not resisted on the ground that his initial appointment was illegal or unconstitutional and that neither any evidence was produced nor any argument was advanced in that regard. Therefore, the Labour Court did not get any opportunity to consider the issue whether reinstatement should be denied to the appellant by applying the new jurisprudence developed by the superior courts in recent years that the court should not pass an award which may result in perpetuation of illegality. This being the position, the learned Single Judge was not at all justified in entertaining the new plea raised on behalf of the corporation for the first time during the course of arguments and over turn an otherwise well reasoned award passed by the Labour Court and deprive the appellant of what may be the only source of his own sustenance and that of his family.12. Another serious error committed by the learned Single Judge is that he decided the writ petition by erroneously assuming that the appellant was a daily wage employee. This is ex facie contrary to the averments contained in the statement of claim filed by the workman that he was appointed in the scale of Rs.and the orders dated 3.10.1986 and 25.2.1987 issued by the concerned Executive Engineer appointing the appellant as Work Munshi in the pay scale of Rs.and then in the scale of Rs.This was not even the case of the corporation that the appellant was employed on daily wages. It seems that attention of the learned Single Judge was not drawn to the relevant records, else he would not have passed the impugned order on a wholly unfounded assumption that the appellant was a daily wager. | 1 | 8,505 | 954 | ### 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:
courts have come to recognize, an imperfect way of referring to the real obstacle to enforcing any kind o contractual limitation on the employers right of discharge, i.e. lack of consideration. If there is anything in contract law which seems likely to advance the present inquiry, it is the growing tendency to protect individuals from contracts of adhesion from over-reaching terms often found in standard forms of contract used by large commercial establishments. Judicial disfavour of contracts of adhesion has been said to reflect the assumed need to protect the weaker contracting part against the harshness of the common law and the abuses of freedom of contract. The same philosophy seems to provide an appropriate answer to the argument, which still seems to have some vitality, that "the servant cannot complain, as he takes the employment on the terms which are offered to him." (emphasis added) 22. In Government Branch Press v. D.B. Belliappa (1979) 1 SCC 477 , the employer invoked the theory of hire and fire by contending that the respondents appointment was purely temporary and his service could be terminated at any time in accordance with the terms and conditions of appointment which he had voluntarily accepted. While rejecting this plea as wholly misconceived, the Court observed: "It is borrowed from the archaic common law concept that employment was a matter between the master and servant only. In the first place, this rule in its original absolute form is not applicable to government servants. Secondly, even with regard to private employment, much of it has passed into the fossils of time. "This rule held the field at the time when the master and servant were taken more literally than they are now and when, as in early Roman Law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his pater familias". The overtones of this ancient doctrine are discernible in the Anglo-American jurisprudence of the 18th century and the first half of the 20th century, which rationalised the employers absolute right to discharge the employee. "Such a philosophy", as pointed out by K.K. Mathew, J. (vide his treatise: "Democracy, Equality and Freedom", p. 326). "of the employers dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers". To bring it in tune with vastly changed and changing socio-economic conditions and mores of the day, much of this old, antiquated and unjust doctrine has been eroded by judicial decisions and legislation, particularly in its application to persons in public employment, to whom the Constitutional protection of Articles 14, 15, 16 and 311 is available. The argument is therefore overruled. The doctrine of laissez faire was again rejected in Glaxo Laboratories (India) Ltd. v. Presiding Officer (1984) 1 SCC 1 , in the following words: "In the days of laissez-faire when industrial relation was governed by the harsh weighted law of hire and fire the management was the Supreme master, the relationship being referable to contract between unequals and the action of the management treated almost sacrosanct. The developing notions of social justice and the expanding horizon of socio-economic justice necessitated statutory protection to the unequal partner in the industry namely, those who invest blood and flesh against those who bring in capital. Moving from the days when whim of the employer was suprema lex, the Act took a modest step to compel by statute the employer to prescribe minimum conditions of service subject to which employment is given. The Act was enacted as its long title shows to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them. The movement was from status to contract, the contract being not left to be negotiated by two unequal persons but statutorily imposed. If his socially beneficial Act was enacted for ameliorating the conditions o the weaker partner, conditions of service prescribed thereunder must receive such interpretation as to advance the intendment underlying the Act and defeat the mischief." 23. Of late, there has been a visible shift in the courts approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalization and liberalisation are fast becoming the raison detre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganized workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman-employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer – public or private.
### Response:
1
### Explanation:
10. We have considered the respective submissions. In our opinion, the impugned order is liable to be set aside only on the ground that whileinterfering with the award of the Labour Court, the learned Single Judge did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution– Syed Yakoob v. K.S. Radhakrishnan and others, AIR 1964 SC 477 and Surya Dev Rai v. Ram Chander Rai and others 2003(6) SCC 675. In Syed Yakoobs case, this Court delineated the scope of the writ of certiorari in the followingquestion about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding; the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmad Ishaque 1955(1) SCR 1104, Nagandra Nath Bora v. Commissioner of Hills Division and Appeals Assam 1958 SCR 1240 and Kaushalya Devi v. Bachittar Singh AIR 1960 SCdoing so, the learned Single Judge failed to notice that in the reply filed on behalf of the corporation before the Labour Court, the appellants claim for reinstatement with back wages was not resisted on the ground that his initial appointment was illegal or unconstitutional and that neither any evidence was produced nor any argument was advanced in that regard. Therefore, the Labour Court did not get any opportunity to consider the issue whether reinstatement should be denied to the appellant by applying the new jurisprudence developed by the superior courts in recent years that the court should not pass an award which may result in perpetuation of illegality. This being the position, the learned Single Judge was not at all justified in entertaining the new plea raised on behalf of the corporation for the first time during the course of arguments and over turn an otherwise well reasoned award passed by the Labour Court and deprive the appellant of what may be the only source of his own sustenance and that of his family.12. Another serious error committed by the learned Single Judge is that he decided the writ petition by erroneously assuming that the appellant was a daily wage employee. This is ex facie contrary to the averments contained in the statement of claim filed by the workman that he was appointed in the scale of Rs.and the orders dated 3.10.1986 and 25.2.1987 issued by the concerned Executive Engineer appointing the appellant as Work Munshi in the pay scale of Rs.and then in the scale of Rs.This was not even the case of the corporation that the appellant was employed on daily wages. It seems that attention of the learned Single Judge was not drawn to the relevant records, else he would not have passed the impugned order on a wholly unfounded assumption that the appellant was a daily wager.
|
B. Muthukrishnan (dead) by L.Rs Vs. S.T. Reddiar Educational and Charitable Trust and Ors | Abhay Manohar Sapre, J.1. These appeals are directed against the order dated 20.08.2008 passed by the High Court of Kerala at Ernakulam in I.A. No. 3280 of 2008 in R.F.A. No. 474 of 2008 by which the Division Bench of the High Court modified the order dated 28.07.2008 in I.A. No. 2907/88 granting stay and the order dated 30.10.2008 in I.A. No. 4422 of 2008 in R.F.A. No. 474 of 2008 by which the High Court dismissed the application filed by the Appellants herein for reconsidering the order dated 20.08.2008.2. Keeping in view the nature of order that we are passing for disposal of these appeals, it is not necessary to set out the facts much less in detail.3. The impugned order reads as under:The interim stay is modified. The judgment of the Courts below directing the framing of a scheme is in respect of the trust properties A to D including the temple (C Schedule). Though it is contended by the Appellant that there is no mis-management as regards the properties are concerned, evidently, in the temple, at present no rituals, poojas etc. are conducted. In such circumstances, we vacate the stay with respect to any interim arrangements to be made for the revival of the temple poojas. The interim stay will continue only in respect of other properties. It is open to the Respondents to move any application before the Courts below for such temporary arrangements.4. It is not in dispute that the impugned orders are interim in nature having been passed in pending Regular First Appeal filed by the Defendants (Respondents herein) against the judgment and decree dated 11.03.2008 passed by the Trial Court in O.S. No. 1 of 2003, which decreed the Plaintiffs (Appellants) suit. It is also not in dispute that the first appeal out of which these appeals arise in which the impugned orders were passed is still pending for its final disposal. | 0[ds]4. It is not in dispute that the impugned orders are interim in nature having been passed in pending Regular First Appeal filed by the Defendants (Respondents herein) against the judgment and decree dated 11.03.2008 passed by the Trial Court in O.S. No. 1 of 2003, which decreed the Plaintiffs (Appellants) suit. It is also not in dispute that the first appeal out of which these appeals arise in which the impugned orders were passed is still pending for its final disposal. | 0 | 359 | 96 | ### 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:
Abhay Manohar Sapre, J.1. These appeals are directed against the order dated 20.08.2008 passed by the High Court of Kerala at Ernakulam in I.A. No. 3280 of 2008 in R.F.A. No. 474 of 2008 by which the Division Bench of the High Court modified the order dated 28.07.2008 in I.A. No. 2907/88 granting stay and the order dated 30.10.2008 in I.A. No. 4422 of 2008 in R.F.A. No. 474 of 2008 by which the High Court dismissed the application filed by the Appellants herein for reconsidering the order dated 20.08.2008.2. Keeping in view the nature of order that we are passing for disposal of these appeals, it is not necessary to set out the facts much less in detail.3. The impugned order reads as under:The interim stay is modified. The judgment of the Courts below directing the framing of a scheme is in respect of the trust properties A to D including the temple (C Schedule). Though it is contended by the Appellant that there is no mis-management as regards the properties are concerned, evidently, in the temple, at present no rituals, poojas etc. are conducted. In such circumstances, we vacate the stay with respect to any interim arrangements to be made for the revival of the temple poojas. The interim stay will continue only in respect of other properties. It is open to the Respondents to move any application before the Courts below for such temporary arrangements.4. It is not in dispute that the impugned orders are interim in nature having been passed in pending Regular First Appeal filed by the Defendants (Respondents herein) against the judgment and decree dated 11.03.2008 passed by the Trial Court in O.S. No. 1 of 2003, which decreed the Plaintiffs (Appellants) suit. It is also not in dispute that the first appeal out of which these appeals arise in which the impugned orders were passed is still pending for its final disposal.
### Response:
0
### Explanation:
4. It is not in dispute that the impugned orders are interim in nature having been passed in pending Regular First Appeal filed by the Defendants (Respondents herein) against the judgment and decree dated 11.03.2008 passed by the Trial Court in O.S. No. 1 of 2003, which decreed the Plaintiffs (Appellants) suit. It is also not in dispute that the first appeal out of which these appeals arise in which the impugned orders were passed is still pending for its final disposal.
|
Sarla Performance Fibers Limited and Ors Vs. Commissioner of Central Excise | the two-Judge Bench referred to the decision in SIV Industries Ltd. (supra) and opined that:- "A similar issue fell for consideration of this Court in SIV Industries Ltd. (supra) In that case, the assessee was a 100% EOU. Later on, they sought permission to withdraw from 100% EOU Scheme, for which the Ministry accorded the necessary permission. However, some of the goods lying in the unit were removed prior to the debonding. A dispute arose regarding the rate of duty payable on such sales. The plea taken by the assessee was that they were liable to pay duty under Section 3(1) of the Act together with customs duty on the imported raw material used in the manufacture of said finished goods, lying in the stock whereas the stand of the Revenue was that excise duty under the proviso to Section 3(1) of the Act was payable on the finished goods with no customs duty being leviable on the raw materials used in the manufacture of finished goods. Thus, the bone of contention in that case was also with regard to the interpretation of the expression "allowed to be sold in India" appearing in the said proviso. Interpreting the said expression, this Court held that the expression "allowed to be sold in India" used in the proviso to Section 3(1) of the Act is applicable only to sales made in DTA up to 25% of the production by 100% EOUs, which are allowed to be sold into India as per the provisions of the Exim Policy. No permission was required to sell the goods manufactured by 100% EOU lying with it at the time the approval is accorded to debond. The Court opined that the goods having been sold without permission of the Central Government to debond the unit, the duty on the goods sold by the assessee was leviable under main Section 3(1) of the Act." [Emphasis added] 34. It is necessary to state here that after so stating the Court also noted that after pronouncement of the decision in SIV Industries Ltd. (supra), the circular was issued on 13.02.2002 clarifying the position. Interpreting the said circular, the Court held:- "19. As aforesaid, according to the Exim Policy 1992-1997 read with Appendix XXXIII of the Handbook of Procedures, an EOU may sell 50% of its production in value terms into a DTA only on issuance of a removal authorisation by the Development Commissioner.20. In the instant case, admittedly at the time of sales of shrimps and shrimp seeds by the assessee in DTA, the Development Commissioner had not issued the requisite removal authorisation. Therefore, in view of the dictum of this Court in SIV Industries Ltd. (supra ), with which we are in respectful agreement, and the afore-extracted circular issued by the Board following the said decision, excise duty on such sales is chargeable under main Section 3(1) of the Act." [Emphasis added] 35. The impugned order, as is manifest, relies on the Larger Bench decision. It is to be noted that after the judgment in NCC Blue Water Products Ltd. (supra) the said decision was brought to the notice of the tribunal but it has opined that parent judgment in SIV Industries Ltd. (supra) was distinguished by the Larger Bench and further the circular dated 05.01.2004 was not taken note of by this Court in the subsequent judgment. On a careful scrutiny of the authority in NCC Blue Water Products Ltd. (supra), we are of the considered opinion that it concurs with the view expressed in SIV Industries Ltd. (supra). The circular dated 05.01.2004 came into existence after the Larger Bench decision in Himalaya International Ltd. (supra). We have already stated that there was no justification for distinguishing the decision in SIV Industries Ltd. (supra). The Technical Member who authored the judgment after the decision in NCC Blue Water Products Ltd. (supra) was brought to the notice of the tribunal has absolutely improperly noted that the circular dated 05.01.2004 was not brought to the notice of this Court. The Court in NCC Blue Water Products Ltd. case had not based its conclusion on the basis of the circular dated 13.02.2002. It is clear as day that it has concurred with the ratio laid down in SIV Industries Ltd. (supra). It has been clearly opined that the expression "allowed to be sold in India" used in proviso to Section 3(1) of the Act would be applicable only to sales made in DTA of the production by 100% EOUs, which are allowed to be sold into India as per the provisions of the Exim Policy.36. The said authority has also made it clear that the circular issued in 2002 is in consonance with the authority in SIV Industries Ltd. (supra). Thus, the view expressed by NCC Blue Water Products Ltd. (supra) has given the stamp of approval to the circular. It is a binding precedent on all the courts and the tribunals under Article 141 of the Constitution of India. The Larger Bench of the Tribunal, as stated earlier, could not have distinguished the judgment in SIV Industries Ltd. (supra). The later circular issued on 05.01.2004 on which reliance was placed by the revenue before the tribunal which has been taken note of in the impugned judgment is clearly indicative of an erroneous approach. The decision in NCC Blue Water Products Ltd. (supra) was bound to be followed and the tribunal could not have stated that 2004 circular was not taken note of. The tribunal should have appropriately appreciated that this Court was interpreting the statutory provision and it is also worthy to note that after the judgment delivered in SIV Industries Ltd. (supra) an amendment was brought into the provision. Therefore, the transaction prior to the date of amendment would be governed by SIV Industries Ltd. (supra) which has been followed in NCC Blue Water Products Ltd. (supra). Be it clarified that we are not concerned with the amended provision in this case.37. In view of the aforesaid analysis, the | 1[ds]we may refer to the authority in NCC Blue Water Products Ltd. (supra). In the said case, the tribunal has held that the duty of Central excise on shrimps and shrimp seeds produced and removed by the assessee-respondent, a 100% export-oriented unit (EOU), in the Domestic Tariff Area (DTA) without the approval of the Development Commissioner, would be payable under Section 3(1) of the Act and not under the proviso appended thereto. The two-Judge Bench taking note of the fact that during the period 1994-1995 to 1997-1998, the assessee produced and sold 11,15,29,540 number of shrimp seeds and 48,365 kg of shrimps in DTA without obtaining the permission of the Development Commissioner; without issuing proper invoices as mandated under Rule 100-E of the Central Excise Rules, 1944 (for short "the Rules") and without payment of excise duty. Besides, the assessee also undertook certain job-work whereby it processed 864.238 MT of shrimps and 905.580 MT of fish and cleared the said goods in DTA. According to the assessee, these goods were ultimately exported by DTA units. The said action of the assessee compelled the authority to issue a show cause notice requiring the assessee to show cause as to why duty of excise equal to aggregate of the duties of customs should not be levied under Section 3 of the Act read with Rule 9(2) read with proviso to sub-section (1) of Section 11-A of the Act and interest and penalty thereon. The matter was contested by the assessee and eventually the tribunal ruled in favour of the assessee. Before this Court, it was contended that since as per Note 1 of Section I of the First Schedule to the Customs Tariff Act, 1975, any reference in that section "to a particular genus or species of an animal, except where the context otherwise requires, includes a reference to the young of that genus or species" and, therefore, both live shrimps and shrimp seeds are classifiable under Sub-Heading 0306.23 of Chapter 3 of the First Schedule to the Customs Tariff Act, 1975. It was also urged that the tribunal committed an error in relying on the decision of this Court in SIV Industries Ltd. (supra) because unlike in that case the assessee had sought permission of the Development Commissioner, who in turn had advised them to approach the SIA for permission to clear shrimps and shrimp seeds which, in fact, was granted and, therefore, they were required to pay duty under proviso to Section 3(1) of the Act. It was also urged that under the Exim Policy, an EOU is obliged to make exports of the entire production itself and not through any otherCourt posed the followingcore question for our consideration, therefore, is whether the sales of shrimps and shrimp seeds by the assessee in DTA, without requisite permission from the Development Commissioner, are to be assessed to excise duty under Section 3(1) of the Act or under the proviso to the saidTo deal with the said question, the Court referred to Section 3 and it expressed understanding of the provision in the followingis manifest that all excisable goods produced or manufactured in India are exigible to duty of excise under Section 3 of the Act, the charging section, at the rates set forth in the Schedule to the Tariff Act. However, the proviso to the said section provides that the duties of excise on any excisable goods, which are produced or manufactured by a 100% EOU and allowed to be sold in India shall be an amount equal to the aggregate of the duties of customs which would be leviable under Section 12 of the Customs Act, 1962. As aforestated, the controversy at hand is whether in the absence of an order by the competent authority, allowing the assessee to sell the shrimp seeds and shrimps in India, excise duty on such sales could be levied and collected in terms of the proviso. To put it differently, the issue relates to the significance of the expression "allowed to be sold in India" as appearing in clause (ii) to the proviso to sub-section (1) of Section 3 of the Act.After so stating the two-Judge Bench referred to the decision in SIV Industries Ltd. (supra) and opinedsimilar issue fell for consideration of this Court in SIV Industries Ltd. (supra) In that case, the assessee was a 100% EOU. Later on, they sought permission to withdraw from 100% EOU Scheme, for which the Ministry accorded the necessary permission. However, some of the goods lying in the unit were removed prior to the debonding. A dispute arose regarding the rate of duty payable on such sales. The plea taken by the assessee was that they were liable to pay duty under Section 3(1) of the Act together with customs duty on the imported raw material used in the manufacture of said finished goods, lying in the stock whereas the stand of the Revenue was that excise duty under the proviso to Section 3(1) of the Act was payable on the finished goods with no customs duty being leviable on the raw materials used in the manufacture of finished goods. Thus, the bone of contention in that case was also with regard to the interpretation of the expression "allowed to be sold in India" appearing in the said proviso. Interpreting the said expression, this Court held that the expression "allowed to be sold in India" used in the proviso to Section 3(1) of the Act is applicable only to sales made in DTA up to 25% of the production by 100% EOUs, which are allowed to be sold into India as per the provisions of the Exim Policy. No permission was required to sell the goods manufactured by 100% EOU lying with it at the time the approval is accorded to debond. The Court opined that the goods having been sold without permission of the Central Government to debond the unit, the duty on the goods sold by the assessee was leviable under main Section 3(1) of the Act.The impugned order, as is manifest, relies on the Larger Bench decision. It is to be noted that after the judgment in NCC Blue Water Products Ltd. (supra) the said decision was brought to the notice of the tribunal but it has opined that parent judgment in SIV Industries Ltd. (supra) was distinguished by the Larger Bench and further the circular dated 05.01.2004 was not taken note of by this Court in the subsequent judgment. On a careful scrutiny of the authority in NCC Blue Water Products Ltd. (supra), we are of the considered opinion that it concurs with the view expressed in SIV Industries Ltd. (supra). The circular dated 05.01.2004 came into existence after the Larger Bench decision in Himalaya International Ltd. (supra). We have already stated that there was no justification for distinguishing the decision in SIV Industries Ltd. (supra). The Technical Member who authored the judgment after the decision in NCC Blue Water Products Ltd. (supra) was brought to the notice of the tribunal has absolutely improperly noted that the circular dated 05.01.2004 was not brought to the notice of this Court. The Court in NCC Blue Water Products Ltd. case had not based its conclusion on the basis of the circular dated 13.02.2002. It is clear as day that it has concurred with the ratio laid down in SIV Industries Ltd. (supra). It has been clearly opined that the expression "allowed to be sold in India" used in proviso to Section 3(1) of the Act would be applicable only to sales made in DTA of the production by 100% EOUs, which are allowed to be sold into India as per the provisions of the Exim Policy.36. The said authority has also made it clear that the circular issued in 2002 is in consonance with the authority in SIV Industries Ltd. (supra). Thus, the view expressed by NCC Blue Water Products Ltd. (supra) has given the stamp of approval to the circular. It is a binding precedent on all the courts and the tribunals under Article 141 of the Constitution of India. The Larger Bench of the Tribunal, as stated earlier, could not have distinguished the judgment in SIV Industries Ltd. (supra). The later circular issued on 05.01.2004 on which reliance was placed by the revenue before the tribunal which has been taken note of in the impugned judgment is clearly indicative of an erroneous approach. The decision in NCC Blue Water Products Ltd. (supra) was bound to be followed and the tribunal could not have stated that 2004 circular was not taken note of. The tribunal should have appropriately appreciated that this Court was interpreting the statutory provision and it is also worthy to note that after the judgment delivered in SIV Industries Ltd. (supra) an amendment was brought into the provision. Therefore, the transaction prior to the date of amendment would be governed by SIV Industries Ltd. (supra) which has been followed in NCC Blue Water Products Ltd. (supra). Be it clarified that we are not concerned with the amended provision in this case. | 1 | 9,120 | 1,704 | ### 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 two-Judge Bench referred to the decision in SIV Industries Ltd. (supra) and opined that:- "A similar issue fell for consideration of this Court in SIV Industries Ltd. (supra) In that case, the assessee was a 100% EOU. Later on, they sought permission to withdraw from 100% EOU Scheme, for which the Ministry accorded the necessary permission. However, some of the goods lying in the unit were removed prior to the debonding. A dispute arose regarding the rate of duty payable on such sales. The plea taken by the assessee was that they were liable to pay duty under Section 3(1) of the Act together with customs duty on the imported raw material used in the manufacture of said finished goods, lying in the stock whereas the stand of the Revenue was that excise duty under the proviso to Section 3(1) of the Act was payable on the finished goods with no customs duty being leviable on the raw materials used in the manufacture of finished goods. Thus, the bone of contention in that case was also with regard to the interpretation of the expression "allowed to be sold in India" appearing in the said proviso. Interpreting the said expression, this Court held that the expression "allowed to be sold in India" used in the proviso to Section 3(1) of the Act is applicable only to sales made in DTA up to 25% of the production by 100% EOUs, which are allowed to be sold into India as per the provisions of the Exim Policy. No permission was required to sell the goods manufactured by 100% EOU lying with it at the time the approval is accorded to debond. The Court opined that the goods having been sold without permission of the Central Government to debond the unit, the duty on the goods sold by the assessee was leviable under main Section 3(1) of the Act." [Emphasis added] 34. It is necessary to state here that after so stating the Court also noted that after pronouncement of the decision in SIV Industries Ltd. (supra), the circular was issued on 13.02.2002 clarifying the position. Interpreting the said circular, the Court held:- "19. As aforesaid, according to the Exim Policy 1992-1997 read with Appendix XXXIII of the Handbook of Procedures, an EOU may sell 50% of its production in value terms into a DTA only on issuance of a removal authorisation by the Development Commissioner.20. In the instant case, admittedly at the time of sales of shrimps and shrimp seeds by the assessee in DTA, the Development Commissioner had not issued the requisite removal authorisation. Therefore, in view of the dictum of this Court in SIV Industries Ltd. (supra ), with which we are in respectful agreement, and the afore-extracted circular issued by the Board following the said decision, excise duty on such sales is chargeable under main Section 3(1) of the Act." [Emphasis added] 35. The impugned order, as is manifest, relies on the Larger Bench decision. It is to be noted that after the judgment in NCC Blue Water Products Ltd. (supra) the said decision was brought to the notice of the tribunal but it has opined that parent judgment in SIV Industries Ltd. (supra) was distinguished by the Larger Bench and further the circular dated 05.01.2004 was not taken note of by this Court in the subsequent judgment. On a careful scrutiny of the authority in NCC Blue Water Products Ltd. (supra), we are of the considered opinion that it concurs with the view expressed in SIV Industries Ltd. (supra). The circular dated 05.01.2004 came into existence after the Larger Bench decision in Himalaya International Ltd. (supra). We have already stated that there was no justification for distinguishing the decision in SIV Industries Ltd. (supra). The Technical Member who authored the judgment after the decision in NCC Blue Water Products Ltd. (supra) was brought to the notice of the tribunal has absolutely improperly noted that the circular dated 05.01.2004 was not brought to the notice of this Court. The Court in NCC Blue Water Products Ltd. case had not based its conclusion on the basis of the circular dated 13.02.2002. It is clear as day that it has concurred with the ratio laid down in SIV Industries Ltd. (supra). It has been clearly opined that the expression "allowed to be sold in India" used in proviso to Section 3(1) of the Act would be applicable only to sales made in DTA of the production by 100% EOUs, which are allowed to be sold into India as per the provisions of the Exim Policy.36. The said authority has also made it clear that the circular issued in 2002 is in consonance with the authority in SIV Industries Ltd. (supra). Thus, the view expressed by NCC Blue Water Products Ltd. (supra) has given the stamp of approval to the circular. It is a binding precedent on all the courts and the tribunals under Article 141 of the Constitution of India. The Larger Bench of the Tribunal, as stated earlier, could not have distinguished the judgment in SIV Industries Ltd. (supra). The later circular issued on 05.01.2004 on which reliance was placed by the revenue before the tribunal which has been taken note of in the impugned judgment is clearly indicative of an erroneous approach. The decision in NCC Blue Water Products Ltd. (supra) was bound to be followed and the tribunal could not have stated that 2004 circular was not taken note of. The tribunal should have appropriately appreciated that this Court was interpreting the statutory provision and it is also worthy to note that after the judgment delivered in SIV Industries Ltd. (supra) an amendment was brought into the provision. Therefore, the transaction prior to the date of amendment would be governed by SIV Industries Ltd. (supra) which has been followed in NCC Blue Water Products Ltd. (supra). Be it clarified that we are not concerned with the amended provision in this case.37. In view of the aforesaid analysis, the
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### Explanation:
followingis manifest that all excisable goods produced or manufactured in India are exigible to duty of excise under Section 3 of the Act, the charging section, at the rates set forth in the Schedule to the Tariff Act. However, the proviso to the said section provides that the duties of excise on any excisable goods, which are produced or manufactured by a 100% EOU and allowed to be sold in India shall be an amount equal to the aggregate of the duties of customs which would be leviable under Section 12 of the Customs Act, 1962. As aforestated, the controversy at hand is whether in the absence of an order by the competent authority, allowing the assessee to sell the shrimp seeds and shrimps in India, excise duty on such sales could be levied and collected in terms of the proviso. To put it differently, the issue relates to the significance of the expression "allowed to be sold in India" as appearing in clause (ii) to the proviso to sub-section (1) of Section 3 of the Act.After so stating the two-Judge Bench referred to the decision in SIV Industries Ltd. (supra) and opinedsimilar issue fell for consideration of this Court in SIV Industries Ltd. (supra) In that case, the assessee was a 100% EOU. Later on, they sought permission to withdraw from 100% EOU Scheme, for which the Ministry accorded the necessary permission. However, some of the goods lying in the unit were removed prior to the debonding. A dispute arose regarding the rate of duty payable on such sales. The plea taken by the assessee was that they were liable to pay duty under Section 3(1) of the Act together with customs duty on the imported raw material used in the manufacture of said finished goods, lying in the stock whereas the stand of the Revenue was that excise duty under the proviso to Section 3(1) of the Act was payable on the finished goods with no customs duty being leviable on the raw materials used in the manufacture of finished goods. Thus, the bone of contention in that case was also with regard to the interpretation of the expression "allowed to be sold in India" appearing in the said proviso. Interpreting the said expression, this Court held that the expression "allowed to be sold in India" used in the proviso to Section 3(1) of the Act is applicable only to sales made in DTA up to 25% of the production by 100% EOUs, which are allowed to be sold into India as per the provisions of the Exim Policy. No permission was required to sell the goods manufactured by 100% EOU lying with it at the time the approval is accorded to debond. The Court opined that the goods having been sold without permission of the Central Government to debond the unit, the duty on the goods sold by the assessee was leviable under main Section 3(1) of the Act.The impugned order, as is manifest, relies on the Larger Bench decision. It is to be noted that after the judgment in NCC Blue Water Products Ltd. (supra) the said decision was brought to the notice of the tribunal but it has opined that parent judgment in SIV Industries Ltd. (supra) was distinguished by the Larger Bench and further the circular dated 05.01.2004 was not taken note of by this Court in the subsequent judgment. On a careful scrutiny of the authority in NCC Blue Water Products Ltd. (supra), we are of the considered opinion that it concurs with the view expressed in SIV Industries Ltd. (supra). The circular dated 05.01.2004 came into existence after the Larger Bench decision in Himalaya International Ltd. (supra). We have already stated that there was no justification for distinguishing the decision in SIV Industries Ltd. (supra). The Technical Member who authored the judgment after the decision in NCC Blue Water Products Ltd. (supra) was brought to the notice of the tribunal has absolutely improperly noted that the circular dated 05.01.2004 was not brought to the notice of this Court. The Court in NCC Blue Water Products Ltd. case had not based its conclusion on the basis of the circular dated 13.02.2002. It is clear as day that it has concurred with the ratio laid down in SIV Industries Ltd. (supra). It has been clearly opined that the expression "allowed to be sold in India" used in proviso to Section 3(1) of the Act would be applicable only to sales made in DTA of the production by 100% EOUs, which are allowed to be sold into India as per the provisions of the Exim Policy.36. The said authority has also made it clear that the circular issued in 2002 is in consonance with the authority in SIV Industries Ltd. (supra). Thus, the view expressed by NCC Blue Water Products Ltd. (supra) has given the stamp of approval to the circular. It is a binding precedent on all the courts and the tribunals under Article 141 of the Constitution of India. The Larger Bench of the Tribunal, as stated earlier, could not have distinguished the judgment in SIV Industries Ltd. (supra). The later circular issued on 05.01.2004 on which reliance was placed by the revenue before the tribunal which has been taken note of in the impugned judgment is clearly indicative of an erroneous approach. The decision in NCC Blue Water Products Ltd. (supra) was bound to be followed and the tribunal could not have stated that 2004 circular was not taken note of. The tribunal should have appropriately appreciated that this Court was interpreting the statutory provision and it is also worthy to note that after the judgment delivered in SIV Industries Ltd. (supra) an amendment was brought into the provision. Therefore, the transaction prior to the date of amendment would be governed by SIV Industries Ltd. (supra) which has been followed in NCC Blue Water Products Ltd. (supra). Be it clarified that we are not concerned with the amended provision in this case.
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Valliammai Achi Vs. Nagappa Chettiar & Ors | Pallaniappa had either to confirm the disposition or dissent from it, and his conduct showed that he had confirmed it for he took out probate. Therefore, it must be held that after probate was taken out the residue became the absolute property of Pallaniappa and lost its character as joint Hindu family property.9. Now it is clear from S. 180 that after the legatee elects to dissent from the will he must give up any benefits provided for him by the will. This shows that election under S. 180 would only arise where the legatee derives some benefit from the will to which he would not be entitled except for the will. In such a case he has to elect whether to confirm the will or dissent from it. But where there is no question of the legatee deriving any benefit from the will to which he would not be entitled except for the will, the fact that he confirms the will and accepts what the will provides would not amount to election, for he would have in any case got what the will gave him. Thus election only arises where the legatee has to choose between his own property which might have been willed away to somebody else and the property which belongs to the testator and which the testator has given to the legatee by the will.The matter is brought out in Halsburys Laws of England, Third Edition, Vol. 14, at p. 588, para. 1091, in the following words:"Where a testator by his will purports to give property to A which in fact belongs to B and at the same time out of his own property confers benefits on B. in such circumstances B is not allowed to take the full benefit given him by the will unless he is prepared to carry into effect the whole of the testators dispositions. He is accordingly put to his election to take either under the instrument or against it. If he elects to take under the will he is bound and may be ordered to convey his own property to A; if he elects to take against the will and to keep his own property, and so disappoints A, then he cannot take any benefits under the will without compensating A out of such benefits to the extent of the value of the property of which A is disappointed.Following this principle the High Court held that as the property which the will gave to Pallaniappa would in any case have come to him as a member of the joint family there was no question of election even by Pallaniappa in this case. This view appears to us to be correct.10. But even assuming that there was some kind of election by Pallaniappa we cannot see how the nature of the property left by Pallaniappas father would change merely because Pallaniappas father made a will giving the residue absolutely to Pallaniappa and Pallaniappa took out probate of the will. The property being joint family property Pallaniappas father was not entitled to will it away and his making a will would make no difference to the nature of the property when it came into the hands of Pallaniappa. A father cannot turn joint family property into absolute property of his son by merely making a will thus depriving sons of the son who might be born thereafter of their right in the joint family property. It is well settled that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently : [see Hindu Law by Mulla, Thirteenth Edition, p. 249, para. 223 (2) (4)]. If that is so and the character of the ancestral property does not change so far as sons are concerned even after partition, we fail to see how that character can change merely because the father makes a will by which he gives the residue of the joint family property (after making certain bequests) to the son. A father in a Mitakshara family has a very limited right to make a will and Pallaniappas father could not make the will disposing of the entire joint family property, though he gave the residue to his son. We are, therefore, of opinion that merely because Pallaniappas father made the will and Pallaniappa probably as a dutiful son took out probate and carried out the wishes of his father, the nature of the property could not change and it will be joint family property in the hands of Pallaniappa so far as his male issues are concerned.11. Further it is equally well settled that "under the Mitakshara law each son upon his birth takes an interest equal to that of his father in ancestral property, whether it be movable or immovable. It is very important to note that the right which the son takes at his birth in the ancestral property is wholly independent of his father. He does not claim through the father....." (see Mullas Hindu Law, Thirteenth Edition, p. 251, para. 224). It follows therefore that the character of the property did not change in this case because of the will of Palluniappas father and it would still be joint family property in the hands of Pallaniappa so far as his male issue was concerned. Further as soon as the respondent was adopted he acquired interest in the joint family property in the hands of Pallaniappa and this interest of his was independent of his father Pallaniappa. In such circumstances even if Pallaniappa could be said to have made an election there can be no question of the respondent being bound by that election for he is not claiming through his father.12. In this view of the matter it is unnecessary to consider the question whether Pallaniappa after the respondents adoption threw the property into the family hotch-pot. | 0[ds]9. Now it is clear from S. 180 that after the legatee elects to dissent from the will he must give up any benefits provided for him by the will. This shows that election under S. 180 would only arise where the legatee derives some benefit from the will to which he would not be entitled except for the will. In such a case he has to elect whether to confirm the will or dissent from it. But where there is no question of the legatee deriving any benefit from the will to which he would not be entitled except for the will, the fact that he confirms the will and accepts what the will provides would not amount to election, for he would have in any case got what the will gave him. Thus election only arises where the legatee has to choose between his own property which might have been willed away to somebody else and the property which belongs to the testator and which the testator has given to the legatee by theview appears to us to be correct.10. But even assuming that there was some kind of election by Pallaniappa we cannot see how the nature of the property left by Pallaniappas father would change merely because Pallaniappas father made a will giving the residue absolutely to Pallaniappa and Pallaniappa took out probate of the will. The property being joint family property Pallaniappas father was not entitled to will it away and his making a will would make no difference to the nature of the property when it came into the hands of Pallaniappa. A father cannot turn joint family property into absolute property of his son by merely making a will thus depriving sons of the son who might be born thereafter of their right in the joint family property. It is well settled that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are bornIf that is so and the character of the ancestral property does not change so far as sons are concerned even after partition, we fail to see how that character can change merely because the father makes a will by which he gives the residue of the joint family property (after making certain bequests) to the son. A father in a Mitakshara family has a very limited right to make a will and Pallaniappas father could not make the will disposing of the entire joint family property, though he gave the residue to his son. We are, therefore, of opinion that merely because Pallaniappas father made the will and Pallaniappa probably as a dutiful son took out probate and carried out the wishes of his father, the nature of the property could not change and it will be joint family property in the hands of Pallaniappa so far as his male issues arefollows therefore that the character of the property did not change in this case because of the will of Palluniappas father and it would still be joint family property in the hands of Pallaniappa so far as his male issue was concerned. Further as soon as the respondent was adopted he acquired interest in the joint family property in the hands of Pallaniappa and this interest of his was independent of his father Pallaniappa. In such circumstances even if Pallaniappa could be said to have made an election there can be no question of the respondent being bound by that election for he is not claiming through his father.12. In this view of the matter it is unnecessary to consider the question whether Pallaniappa after the respondents adoption threw the property into the family hotch-pot.Now it is clear from S. 180 that after the legatee elects to dissent from the will he must give up any benefits provided for him by the will. This shows that election under S. 180 would only arise where the legatee derives some benefit from the will to which he would not be entitled except for the will. In such a case he has to elect whether to confirm the will or dissent from it. But where there is no question of the legatee deriving any benefit from the will to which he would not be entitled except for the will, the fact that he confirms the will and accepts what the will provides would not amount to election, for he would have in any case got what the will gave him. Thus election only arises where the legatee has to choose between his own property which might have been willed away to somebody else and the property which belongs to the testator and which the testator has given to the legatee by thewill.The matter is brought out in Halsburys Laws of England, Third Edition, Vol. 14, at p. 588, para. 1091, in the followinga testator by his will purports to give property to A which in fact belongs to B and at the same time out of his own property confers benefits on B. in such circumstances B is not allowed to take the full benefit given him by the will unless he is prepared to carry into effect the whole of the testators dispositions. He is accordingly put to his election to take either under the instrument or against it. If he elects to take under the will he is bound and may be ordered to convey his own property to A; if he elects to take against the will and to keep his own property, and so disappoints A, then he cannot take any benefits under the will without compensating A out of such benefits to the extent of the value of the property of which A isthis principle the High Court held that as the property which the will gave to Pallaniappa would in any case have come to him as a member of the joint family there was no question of election even by Pallaniappa in this case. | 0 | 2,472 | 1,069 | ### 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:
Pallaniappa had either to confirm the disposition or dissent from it, and his conduct showed that he had confirmed it for he took out probate. Therefore, it must be held that after probate was taken out the residue became the absolute property of Pallaniappa and lost its character as joint Hindu family property.9. Now it is clear from S. 180 that after the legatee elects to dissent from the will he must give up any benefits provided for him by the will. This shows that election under S. 180 would only arise where the legatee derives some benefit from the will to which he would not be entitled except for the will. In such a case he has to elect whether to confirm the will or dissent from it. But where there is no question of the legatee deriving any benefit from the will to which he would not be entitled except for the will, the fact that he confirms the will and accepts what the will provides would not amount to election, for he would have in any case got what the will gave him. Thus election only arises where the legatee has to choose between his own property which might have been willed away to somebody else and the property which belongs to the testator and which the testator has given to the legatee by the will.The matter is brought out in Halsburys Laws of England, Third Edition, Vol. 14, at p. 588, para. 1091, in the following words:"Where a testator by his will purports to give property to A which in fact belongs to B and at the same time out of his own property confers benefits on B. in such circumstances B is not allowed to take the full benefit given him by the will unless he is prepared to carry into effect the whole of the testators dispositions. He is accordingly put to his election to take either under the instrument or against it. If he elects to take under the will he is bound and may be ordered to convey his own property to A; if he elects to take against the will and to keep his own property, and so disappoints A, then he cannot take any benefits under the will without compensating A out of such benefits to the extent of the value of the property of which A is disappointed.Following this principle the High Court held that as the property which the will gave to Pallaniappa would in any case have come to him as a member of the joint family there was no question of election even by Pallaniappa in this case. This view appears to us to be correct.10. But even assuming that there was some kind of election by Pallaniappa we cannot see how the nature of the property left by Pallaniappas father would change merely because Pallaniappas father made a will giving the residue absolutely to Pallaniappa and Pallaniappa took out probate of the will. The property being joint family property Pallaniappas father was not entitled to will it away and his making a will would make no difference to the nature of the property when it came into the hands of Pallaniappa. A father cannot turn joint family property into absolute property of his son by merely making a will thus depriving sons of the son who might be born thereafter of their right in the joint family property. It is well settled that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently : [see Hindu Law by Mulla, Thirteenth Edition, p. 249, para. 223 (2) (4)]. If that is so and the character of the ancestral property does not change so far as sons are concerned even after partition, we fail to see how that character can change merely because the father makes a will by which he gives the residue of the joint family property (after making certain bequests) to the son. A father in a Mitakshara family has a very limited right to make a will and Pallaniappas father could not make the will disposing of the entire joint family property, though he gave the residue to his son. We are, therefore, of opinion that merely because Pallaniappas father made the will and Pallaniappa probably as a dutiful son took out probate and carried out the wishes of his father, the nature of the property could not change and it will be joint family property in the hands of Pallaniappa so far as his male issues are concerned.11. Further it is equally well settled that "under the Mitakshara law each son upon his birth takes an interest equal to that of his father in ancestral property, whether it be movable or immovable. It is very important to note that the right which the son takes at his birth in the ancestral property is wholly independent of his father. He does not claim through the father....." (see Mullas Hindu Law, Thirteenth Edition, p. 251, para. 224). It follows therefore that the character of the property did not change in this case because of the will of Palluniappas father and it would still be joint family property in the hands of Pallaniappa so far as his male issue was concerned. Further as soon as the respondent was adopted he acquired interest in the joint family property in the hands of Pallaniappa and this interest of his was independent of his father Pallaniappa. In such circumstances even if Pallaniappa could be said to have made an election there can be no question of the respondent being bound by that election for he is not claiming through his father.12. In this view of the matter it is unnecessary to consider the question whether Pallaniappa after the respondents adoption threw the property into the family hotch-pot.
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must give up any benefits provided for him by the will. This shows that election under S. 180 would only arise where the legatee derives some benefit from the will to which he would not be entitled except for the will. In such a case he has to elect whether to confirm the will or dissent from it. But where there is no question of the legatee deriving any benefit from the will to which he would not be entitled except for the will, the fact that he confirms the will and accepts what the will provides would not amount to election, for he would have in any case got what the will gave him. Thus election only arises where the legatee has to choose between his own property which might have been willed away to somebody else and the property which belongs to the testator and which the testator has given to the legatee by theview appears to us to be correct.10. But even assuming that there was some kind of election by Pallaniappa we cannot see how the nature of the property left by Pallaniappas father would change merely because Pallaniappas father made a will giving the residue absolutely to Pallaniappa and Pallaniappa took out probate of the will. The property being joint family property Pallaniappas father was not entitled to will it away and his making a will would make no difference to the nature of the property when it came into the hands of Pallaniappa. A father cannot turn joint family property into absolute property of his son by merely making a will thus depriving sons of the son who might be born thereafter of their right in the joint family property. It is well settled that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are bornIf that is so and the character of the ancestral property does not change so far as sons are concerned even after partition, we fail to see how that character can change merely because the father makes a will by which he gives the residue of the joint family property (after making certain bequests) to the son. A father in a Mitakshara family has a very limited right to make a will and Pallaniappas father could not make the will disposing of the entire joint family property, though he gave the residue to his son. We are, therefore, of opinion that merely because Pallaniappas father made the will and Pallaniappa probably as a dutiful son took out probate and carried out the wishes of his father, the nature of the property could not change and it will be joint family property in the hands of Pallaniappa so far as his male issues arefollows therefore that the character of the property did not change in this case because of the will of Palluniappas father and it would still be joint family property in the hands of Pallaniappa so far as his male issue was concerned. Further as soon as the respondent was adopted he acquired interest in the joint family property in the hands of Pallaniappa and this interest of his was independent of his father Pallaniappa. In such circumstances even if Pallaniappa could be said to have made an election there can be no question of the respondent being bound by that election for he is not claiming through his father.12. In this view of the matter it is unnecessary to consider the question whether Pallaniappa after the respondents adoption threw the property into the family hotch-pot.Now it is clear from S. 180 that after the legatee elects to dissent from the will he must give up any benefits provided for him by the will. This shows that election under S. 180 would only arise where the legatee derives some benefit from the will to which he would not be entitled except for the will. In such a case he has to elect whether to confirm the will or dissent from it. But where there is no question of the legatee deriving any benefit from the will to which he would not be entitled except for the will, the fact that he confirms the will and accepts what the will provides would not amount to election, for he would have in any case got what the will gave him. Thus election only arises where the legatee has to choose between his own property which might have been willed away to somebody else and the property which belongs to the testator and which the testator has given to the legatee by thewill.The matter is brought out in Halsburys Laws of England, Third Edition, Vol. 14, at p. 588, para. 1091, in the followinga testator by his will purports to give property to A which in fact belongs to B and at the same time out of his own property confers benefits on B. in such circumstances B is not allowed to take the full benefit given him by the will unless he is prepared to carry into effect the whole of the testators dispositions. He is accordingly put to his election to take either under the instrument or against it. If he elects to take under the will he is bound and may be ordered to convey his own property to A; if he elects to take against the will and to keep his own property, and so disappoints A, then he cannot take any benefits under the will without compensating A out of such benefits to the extent of the value of the property of which A isthis principle the High Court held that as the property which the will gave to Pallaniappa would in any case have come to him as a member of the joint family there was no question of election even by Pallaniappa in this case.
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NATIONAL HIGHWAYS AUTHORITY OF INDIA Vs. M/s. PROGRESSIVE CONSTRUCTION LTD | INDU MALHOTRA, J. 1. Leave granted. 2. The present Appeal arises out of the Judgment passed under Section 34 of the Arbitration and Conciliation Act, 1996 wherein the Single Judge vide Order dated 10.04.2019 has substantially set aside the Award dated 27.04.2016 passed by a three-member tribunal. It has been observed that the arbitral tribunal has drawn incorrect inferences from the documents on record, and has not considered vital and relevant evidence in reaching its conclusions. On this basis, a substantial number of claims and counter claims were rejected, granting liberty to the parties to re-agitate their claims, and counter claim (a) afresh in accordance with law. 3. Aggrieved by the judgment of the Single Judge, cross appeals were filed by both parties under Section 37 before the Division Bench. The Division Bench vide the impugned interim Order dated 04.12.2019 directed that the Appeals be confined to the findings with respect to claim nos. 1(i) and (ii); and counter claim (a). 4. The Appellant-NHAI filed the present Appeal to challenge the interim Order dated 04.12.2019. 5. During the pendency of the present Appeal, the parties agreed to a fresh adjudication of all the claims and counter claims made by the parties before a Sole Arbitrator to be appointed by this Court. | 1[ds]5. During the pendency of the present Appeal, the parties agreed to a fresh adjudication of all the claims and counter claims made by the parties before a Sole Arbitrator to be appointed by this Court. | 1 | 244 | 43 | ### 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:
INDU MALHOTRA, J. 1. Leave granted. 2. The present Appeal arises out of the Judgment passed under Section 34 of the Arbitration and Conciliation Act, 1996 wherein the Single Judge vide Order dated 10.04.2019 has substantially set aside the Award dated 27.04.2016 passed by a three-member tribunal. It has been observed that the arbitral tribunal has drawn incorrect inferences from the documents on record, and has not considered vital and relevant evidence in reaching its conclusions. On this basis, a substantial number of claims and counter claims were rejected, granting liberty to the parties to re-agitate their claims, and counter claim (a) afresh in accordance with law. 3. Aggrieved by the judgment of the Single Judge, cross appeals were filed by both parties under Section 37 before the Division Bench. The Division Bench vide the impugned interim Order dated 04.12.2019 directed that the Appeals be confined to the findings with respect to claim nos. 1(i) and (ii); and counter claim (a). 4. The Appellant-NHAI filed the present Appeal to challenge the interim Order dated 04.12.2019. 5. During the pendency of the present Appeal, the parties agreed to a fresh adjudication of all the claims and counter claims made by the parties before a Sole Arbitrator to be appointed by this Court.
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5. During the pendency of the present Appeal, the parties agreed to a fresh adjudication of all the claims and counter claims made by the parties before a Sole Arbitrator to be appointed by this Court.
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UNION OF INDIA, THROUGH THE SECRETARY MINISTRY OF ENVIRONMENT AND FOREST Vs. TRILOK S. BHANDARI & ORS | the appointments made on the recommendations of the review selection committee by notifications dated 8th July, 2005 and 4th/5th October, 2005 was never a subject matter of challenge and the judgment on which the reliance was placed of this Court was dealing with the appointments and selections made of the officers in the Indian Administrative Service and while holding that clubbing of vacancies was not permissible and being in contravention to Regulation 5 of Regulations 1955, the order came to be passed in exercise of power of this Court under Article 142 of the Constitution of India for adjustment of the officers against the future vacancies, was of no assistance and the High Court has exceeded its jurisdiction in granting such omnibus relief which was in clear violation of the Regulations 1966. 14. Mr. Ravindra Raizada, learned senior counsel appearing for the State of UP submits that the officers who could not be selected on the recommendations of the review selection committee in the year 2005 or against the subsequent year vacancies have no right to continue to be a member of the IFS cadre but they were allowed to continue because of the interim order passed by this Court in the instant appeal preferred at the instance of the appellant Union of India and mere continuance in the cadre of IFS under the interim order of this Court would not confer any right to claim relief, more so, when the recommendations made by the review selection committee was never a subject matter of challenge. 15. As observed, the 1st respondent Trilok S. Bhandari stood retired from service on 30 th November, 1996 and other officers who were impleaded in the instant appeal, as informed to this Court, were appointed in the IFS cadre against the vacancies of subsequent years and the only officer who was left out was respondent no. 13 who could not be selected even in the subsequent year vacancy and finally retired in September, 2013 and this fact is not disputed that he was allowed to continue in the IFS cadre because of the interim order passed by this Court directing the parties to maintain status quo in the meantime by an order dated 12th November, 2007. 16. Ms. Rekha Pandey, learned counsel appearing for respondent no. 13 submits that he was allowed to continue in the IFS cadre and finally retired from service while holding the post as an IFS officer, at the same time, his pension and other emoluments have also been computed on the last pay drawn in the IFS cadre. In the given circumstances, learned counsel submits that there is no dispute so far as factual matrix is concerned, as he has throughout worked in IFS cadre and retired from service, in the peculiar facts and circumstances of the case, his service conditions may be protected as he has been paid his retiral benefits and getting his provisional pension as an IFS Officer. 17. We have called upon Mr. Ravindra Raizada, learned senior counsel appearing for the State of UP to take instructions that if this officer would not have been allowed to continue in the IFS cadre and allowed in the cadre of State Forest Service, what benefits he was entitled for when he finally retired in September 2013. 18. Learned counsel on instructions fairly submits that he was in the grade pay of Rs. 6600 as officer in the IFS cadre but if he would have been allowed to continue as State Forest Officer in 1996, he would have been in the grade pay of Rs. 5400 but the officer junior to him in the State cadre(State Forest Service), in the interregnum period, was promoted as Deputy Director in the grade pay of Rs. 6600 in the year 1997. There was further Assured Career Progression Scheme for the state officers on completion of 10 years (Rs.6600), 6 years (Rs.7600) and 10 years (Rs.8700). If this Officer would have been continued to be a member of the State Forest Service, and his junior being promoted in the year 1997 in the grade pay of Rs. 6600, at least he would have been entitled for promotion and also for assured career progression scheme in future. 19. It is not disputed that respondent no. 13 who could not be appointed on the recommendations of the review selection committee in the year 2005 and also for the subsequent year vacancies in the IFS cadre but as a member of the State Forest Service, his pay scale at least could not have been detrimental to his interest as what being paid to him as an IFS officer. It cannot be denied that respondent no. 13 who could not be appointed against the subsequent year vacancies has no right to continue and the fact is that the officer has not challenged the appointments made on the recommendations of the review selection committee or the recommendations made by the selection committee against the vacancies of subsequent years. At the same time, this fact cannot be ignored that he was allowed to continue till he attained superannuation in September 2013 as a de-facto IFS officer because of the interim order passed by this Court. 20. After we have heard learned counsel for the parties, we are of the considered view that the order passed by the High Court is unsustainable in law for the reason that in the absence of the recommendations made by the review selection committee pursuant to which the appointments were made by notifications dated 8 th July, 2005 and 4th/5th October, 2005, being challenged, there was no justification for the High Court to pass such omnibus directions more particularly when the officer on whose insistence the writ petition was filed, stood retired from service in November 1996 on attaining the age of superannuation and the judgment in Union of India and Others(supra) on which the Division Bench blindly placed reliance, in our considered view, has no application in the facts of the instant case. | 1[ds]19. It is not disputed that respondent no. 13 who could not be appointed on the recommendations of the review selection committee in the year 2005 and also for the subsequent year vacancies in the IFS cadre but as a member of the State Forest Service, his pay scale at least could not have been detrimental to his interest as what being paid to him as an IFS officer. It cannot be denied that respondent no. 13 who could not be appointed against the subsequent year vacancies has no right to continue and the fact is that the officer has not challenged the appointments made on the recommendations of the review selection committee or the recommendations made by the selection committee against the vacancies of subsequent years. At the same time, this fact cannot be ignored that he was allowed to continue till he attained superannuation in September 2013 as a de-facto IFS officer because of the interim order passed by this Court.20. After we have heard learned counsel for the parties, we are of the considered view that the order passed by the High Court is unsustainable in law for the reason that in the absence of the recommendations made by the review selection committee pursuant to which the appointments were made by notifications dated 8 th July, 2005 and 4th/5th October, 2005, being challenged, there was no justification for the High Court to pass such omnibus directions more particularly when the officer on whose insistence the writ petition was filed, stood retired from service in November 1996 on attaining the age of superannuation and the judgment in Union of India and Others(supra) on which the Division Bench blindly placed reliance, in our considered view, has no application in the facts of the instant case. | 1 | 2,552 | 322 | ### 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:
the appointments made on the recommendations of the review selection committee by notifications dated 8th July, 2005 and 4th/5th October, 2005 was never a subject matter of challenge and the judgment on which the reliance was placed of this Court was dealing with the appointments and selections made of the officers in the Indian Administrative Service and while holding that clubbing of vacancies was not permissible and being in contravention to Regulation 5 of Regulations 1955, the order came to be passed in exercise of power of this Court under Article 142 of the Constitution of India for adjustment of the officers against the future vacancies, was of no assistance and the High Court has exceeded its jurisdiction in granting such omnibus relief which was in clear violation of the Regulations 1966. 14. Mr. Ravindra Raizada, learned senior counsel appearing for the State of UP submits that the officers who could not be selected on the recommendations of the review selection committee in the year 2005 or against the subsequent year vacancies have no right to continue to be a member of the IFS cadre but they were allowed to continue because of the interim order passed by this Court in the instant appeal preferred at the instance of the appellant Union of India and mere continuance in the cadre of IFS under the interim order of this Court would not confer any right to claim relief, more so, when the recommendations made by the review selection committee was never a subject matter of challenge. 15. As observed, the 1st respondent Trilok S. Bhandari stood retired from service on 30 th November, 1996 and other officers who were impleaded in the instant appeal, as informed to this Court, were appointed in the IFS cadre against the vacancies of subsequent years and the only officer who was left out was respondent no. 13 who could not be selected even in the subsequent year vacancy and finally retired in September, 2013 and this fact is not disputed that he was allowed to continue in the IFS cadre because of the interim order passed by this Court directing the parties to maintain status quo in the meantime by an order dated 12th November, 2007. 16. Ms. Rekha Pandey, learned counsel appearing for respondent no. 13 submits that he was allowed to continue in the IFS cadre and finally retired from service while holding the post as an IFS officer, at the same time, his pension and other emoluments have also been computed on the last pay drawn in the IFS cadre. In the given circumstances, learned counsel submits that there is no dispute so far as factual matrix is concerned, as he has throughout worked in IFS cadre and retired from service, in the peculiar facts and circumstances of the case, his service conditions may be protected as he has been paid his retiral benefits and getting his provisional pension as an IFS Officer. 17. We have called upon Mr. Ravindra Raizada, learned senior counsel appearing for the State of UP to take instructions that if this officer would not have been allowed to continue in the IFS cadre and allowed in the cadre of State Forest Service, what benefits he was entitled for when he finally retired in September 2013. 18. Learned counsel on instructions fairly submits that he was in the grade pay of Rs. 6600 as officer in the IFS cadre but if he would have been allowed to continue as State Forest Officer in 1996, he would have been in the grade pay of Rs. 5400 but the officer junior to him in the State cadre(State Forest Service), in the interregnum period, was promoted as Deputy Director in the grade pay of Rs. 6600 in the year 1997. There was further Assured Career Progression Scheme for the state officers on completion of 10 years (Rs.6600), 6 years (Rs.7600) and 10 years (Rs.8700). If this Officer would have been continued to be a member of the State Forest Service, and his junior being promoted in the year 1997 in the grade pay of Rs. 6600, at least he would have been entitled for promotion and also for assured career progression scheme in future. 19. It is not disputed that respondent no. 13 who could not be appointed on the recommendations of the review selection committee in the year 2005 and also for the subsequent year vacancies in the IFS cadre but as a member of the State Forest Service, his pay scale at least could not have been detrimental to his interest as what being paid to him as an IFS officer. It cannot be denied that respondent no. 13 who could not be appointed against the subsequent year vacancies has no right to continue and the fact is that the officer has not challenged the appointments made on the recommendations of the review selection committee or the recommendations made by the selection committee against the vacancies of subsequent years. At the same time, this fact cannot be ignored that he was allowed to continue till he attained superannuation in September 2013 as a de-facto IFS officer because of the interim order passed by this Court. 20. After we have heard learned counsel for the parties, we are of the considered view that the order passed by the High Court is unsustainable in law for the reason that in the absence of the recommendations made by the review selection committee pursuant to which the appointments were made by notifications dated 8 th July, 2005 and 4th/5th October, 2005, being challenged, there was no justification for the High Court to pass such omnibus directions more particularly when the officer on whose insistence the writ petition was filed, stood retired from service in November 1996 on attaining the age of superannuation and the judgment in Union of India and Others(supra) on which the Division Bench blindly placed reliance, in our considered view, has no application in the facts of the instant case.
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### Explanation:
19. It is not disputed that respondent no. 13 who could not be appointed on the recommendations of the review selection committee in the year 2005 and also for the subsequent year vacancies in the IFS cadre but as a member of the State Forest Service, his pay scale at least could not have been detrimental to his interest as what being paid to him as an IFS officer. It cannot be denied that respondent no. 13 who could not be appointed against the subsequent year vacancies has no right to continue and the fact is that the officer has not challenged the appointments made on the recommendations of the review selection committee or the recommendations made by the selection committee against the vacancies of subsequent years. At the same time, this fact cannot be ignored that he was allowed to continue till he attained superannuation in September 2013 as a de-facto IFS officer because of the interim order passed by this Court.20. After we have heard learned counsel for the parties, we are of the considered view that the order passed by the High Court is unsustainable in law for the reason that in the absence of the recommendations made by the review selection committee pursuant to which the appointments were made by notifications dated 8 th July, 2005 and 4th/5th October, 2005, being challenged, there was no justification for the High Court to pass such omnibus directions more particularly when the officer on whose insistence the writ petition was filed, stood retired from service in November 1996 on attaining the age of superannuation and the judgment in Union of India and Others(supra) on which the Division Bench blindly placed reliance, in our considered view, has no application in the facts of the instant case.
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M/s Rajankumar and Brothers (Impex) Vs. Oriental Insurance Company Ltd | Respondent had waived the breach of warranty before the Appellants claim, by incorporating Clause 5.2 of the Policy. 6.3 We may now turn to whether the Respondent waived the breach of warranty by its conduct or any representation. During the course of arguments, it was put to the learned counsel for the parties whether the act of provision of General Average Guarantee amounted to a waiver of breach of warranty. It is commonly understood that a waiver in the context of marine insurance, apart from one already provided for by way of held covered or other such terms in the insurance contract, must include two elements, namely, (i) knowledge of the insurer, and (ii) unequivocal representation of the insurer. The presence of both these elements is indispensable.For instance, after the occurrence of loss, even if the insurer makes an express representation that it would affirm the contract and indemnify the loss, if the insurer can prove that such a representation was made without the knowledge that there was a breach of warranty on part of the insured, the liability of the insurer would stand discharged from the date on which the warranty was breached. Similarly, mere knowledge on the part of the insurer that there was a breach of warranty would not amount to a waiver, in the absence of an express representation to that effect. (Baris Soyer, Warranties in Marine Insurance (Cavendish, 2001) 206-213.) 6.4 Insofar as the element of knowledge is concerned, if the vessel carrying the insured cargo incurs loss, and the insurer seeks to investigate into whether or not there was a breach of warranty, no knowledge can be attributed to the insurer until such investigation is completed.(Id, 209.) Once there is knowledge, the second element, i.e., unequivocal representation comes into play. The representation must be of such a nature that it is sufficient for the insured to conclude that the insurer is aware of the breach of warranty and has chosen to waive such breach and indemnify the loss. The determination of whether or not these elements are present assumes more complexity in cases where such a representation comes from an agent of the insurer, or where such an agent has knowledge of the breach. However, these arguments with respect to representations made by the insurers agent have not been raised before us, and hence, such issues need not be addressed for the purposes of the present case. 6.5 Under the facts and circumstances of this case, the breach of warranty occurred when the Appellant informed the Respondent by letter dated 26.5.2010 that the subject vessel was classed by I.R.S., thereby indicating the subject vessel was compliant with the ICC. After the subject vessel ran aground on the midnight of 18.7.2010, the Appellant requested the issuance of General Average Guarantee, and the same was issued on 3.8.2010. At the outset, the General Average Guarantee in Form B dated 3.8.2010 issued by the Respondent to the GAA was only an undertaking to pay the shipowners and the GAA on behalf of the Appellant for their contribution to the General Average, as and when such contribution was ascertained. This Guarantee was issued as per Clause 2 of the Marine Insurance Policy, under which the Respondent had agreed to cover all general average and salvage charges. Clause 2 reads as follows: 2. This insurance covers general average and salvage charges, adjusted or determined according to the contract of affreightment and/or the governing law and practice, incurred to avoid or in connection with the avoidance of loss from any cause, except those excluded in Clauses 4, 5, 6 and 7 or elsewhere in this insurance. (emphasis supplied) At the time the aforesaid General Average Guarantee dated 3.8.2010 was issued, the Respondent was still under the impression that the subject vessel is in compliance with the ICC. Obviously, such impression was based on the representation made by the Appellant that the subject vessel was classed with I.R.S. It was only by the e-mail dated 9.8.2010 from its claim settling agent that the Respondent came to know that the subject vessel does not meet the prescribed classification. Subsequently, the Respondent withdrew the Guarantee and refused to pay the separate salvage security. Hence, the issuance of the General Average Guarantee cannot not be understood as a waiver inasmuch as the Respondent, on the date of such issuance, did not have the knowledge of the breach of warranty committed by the Appellant and was only fulfilling its duty to contribute to the General Average (as explained supra) in good faith, as required by Clause 2 of the Marine Insurance Policy. 6.6 Further, in any case, at the time of issuing the General Average Guarantee, the Respondent did not expressly state that it was aware of the non-compliance with the ICC and it was waiving the same. In fact, the moment the breach of warranty was discovered, the Respondent initiated steps to withdraw the General Average Guarantee that had been issued by them and refused to pay the additional salvage security, which clearly demonstrates that there was no intent to waive the breach of warranty. Therefore, it cannot be said that the Respondent had waived the breach of warranty through its conduct or representations after the claim was made by the Appellant. 7. Since we have concluded that the liability of the insurer was discharged on account of the breach of warranty caused by non-compliance with the classification requirement within the ICC, we do not consider it relevant to deal with the age limitation requirement therein for the purpose of the present case. 8. It is pertinent to note that during the course of hearing the present appeal, three other parties, namely K. Amishkumar Trading Pvt. Ltd., Baijnath Melaram and Viraj Impex Pvt. Ltd. (Intervenors) filed Intervention Applications No. 3 of 2016, No. 4 of 2016 and No. 5 of 2016 respectively in the present appeal. The aforesaid Intervenors filed individual consumer complaints against the Respondent before the NCDRC, which are presently pending adjudication. | 1[ds]5. With respect to the first issue, it is not disputed that both the Cover Note and the Marine Insurance Policy stated that the ICC would be one of the warranties/terms of insurance. Additionally, Clause 6 of the Cover Note, as mentioned supra, prescribed that the subject vessel needed to conform to the current ICC, in the absence of which, the insurance cover would be subject to payment of an additional premiumAs is evident from the above, the ICC 01/01/2001 imposes two requirements to ensure that the vessel complies with a certain minimum standard of seaworthiness. The first is a classification requirement which requires that the vessel should be classed with a Classification Society which is a Member/Associate Member of the International Association of Classification Societies (IACS) or, in the case of vessels engaged exclusively in coastal trading, a National Flag Society. The second is an age limitation in respect of the insured vesselThus, it can be inferred from the above that an underwriter/insurer would usually trust the quality of, and be prepared to issue a reasonable premium for, a vessel classed with an IACS member society. On the other hand, the insurer may demand a higher premium, or deny insurance cover altogether, for a voyage in respect of a vessel classed by a non-IACS member society. Hence, the ICC prescribes classification with a member of the IACS as the baseline for ensuring that the policy involves less risk for the underwriterTherefore, Sub Clause 1 of the ICC 01/01/2001 provides that cargo interests are obligated to promptly notify insurance underwriters if the cargo is being carried by a vessel which is not classed as prescribed in the ICC, and Clause 5 makes it clear that failure to provide such information will lead to exclusion of the insurance coverWe are in agreement with the said contention of the Appellant, inasmuch as the 1978 version of the ICC was replaced by the ICC 13/4/92, the ICC 1/8/97, and the ICC 01/01/2001. As mentioned supra, the ICC 01/01/2001 is the most recent version of the ICC, and the one which is relevant for the purpose of the present caseHowever, the most recent version of the ICC, i.e., ICC 01/01/2001, parts of which we have quoted earlier, does not help the Appellants case inasmuch as it is stricter in its import. We find it useful to undertake a comparative analysis of the older versions of the ICC and the ICC 01/01/2001 in this regardThe aforementioned held covered provision acted as a saving clause to cater for situations where an assured discovered that the vessel in which their cargo was being carried fell outside the classification and/or age requirement in the ICC. In such a situation the assured cargo owner could still avail of the insurance cover subject to negotiating payment of an additional premium with the insurerHence, it appears that in order to avoid any confusion, the ICC 01/01/2001 has been drafted to expressly incorporate the aforesaid two requirements. Under the ICC 01/01/2001, the assured must immediately inform the insurer/underwriter if they discover that the vessel carrying the cargo does not meet the classification requirementAdditionally, if the vessel is such that a prudent underwriter would not be prepared to underwrite the risk at a reasonable premium, the assured is not entitled to the insurance cover.6 These requirements are important because, as discussed earlier, the classification of the vessel is a significant factor for influencing the underwriters decision-making as regards whether an insurance cover should be issued for the marine voyage or notIt is true that the Courts reasoning in Everbright was significantly predicated upon the fact that the respondent insurer had issued an open-cover insurance in which the insurer had only issued a cover-note based on the details of the cargo and the port of origin and destination of the voyage, and the relevant particulars of the vessel had not been provided to the insurer in advance. This is important to note because in the present case, though the Respondent initially issued the Cover Note dated 14.5.2010 (supra) without knowing the particulars of the vessel, it subsequently issued the Marine Insurance Policy dated 2.7.2010 after having received the Appellants communication that the vessel was classed as I.R.S5.6 Thus, it can be seen from the above decisions that where a vessel is not classed with a recognized classification society in terms of the ICC, any loss incurred by the cargo-owner will be excluded from the scope of the insurance cover. Further, the cargo owner is required to immediately notify the underwriters and negotiate an additional premium if the vessel is not classed in accordance with the ICC5.7 In the instant case, it is apparent that neither was the subject vessel in compliance with the ICC clause, nor had the Appellant given prompt notification to the Respondent about such non-compliance. The Appellant, in its letter dated 26.5.2010 (supra) had informed the Respondent that the vessel is of I.R.S. class. However, the full form of I.R.S. was not specified. As mentioned supra, the Appellant has contended that the NCDRC wrongly interpreted the term I.R.S. to mean Indian Register of Shipping and that the subject vessel was actually registered and classified with the International Register of Shipping. However, our perusal of the official website of the International Register of Shipping shows that its official acronym is INTLREG. (See International Register of Shipping, About, https://intlreg.org/about/.) Whereas I.R.S. is the official acronym of the Indian Register of Shipping. (See Indian Register of Shipping, About IRClass, https://www.irclass.org/aboutirclass/. ) Hence the Appellants contention that I.R.S. refers to the International Register of Shipping is prima facie sustainableThe Appellant had also averred in its complaint before the NCDRC that the Overseas Seller had produced a certificate dated 11.6.2010, certifying that the subject vessel was registered with an approved Classification Society as per the Institute Classification Clause. Further, that as per the said certificate, the class of the subject vessel was equivalent to Lloyds 100A1, and the subject vessel was seaworthy and not more than 30 years old. However, no such evidence of the vessels classification was ever provided to the Respondent. It is true that the Appellant has, during the course of hearing this appeal, placed the certificate dated 11.6.2010 before this Court. However, a perusal of the certificate shows that is only a self-certification wherein the vessel owners have claimed that the subject vessel is classed with an approved classification society as per the ICC clause. It cannot be taken as conclusive evidence that the vessel was actually classed with an IACS member societyEven if we were to accept the Appellants contention that the vessel is classed with the International Register of Shipping (hereinafter INTLREG for convenience), this does not help its case inasmuch the INTLREG is not one of the 12 accredited Member Societies of the IACS. Rather, it is the I.R.S. which is an IACS member. It has never been the case of the Appellant that the subject vessel was classed by the Indian Register of Shipping. It is also not the Appellants case that the subject vessel was classed with a National Flag Society. Hence we find that the Appellant had committed breach of the classification requirement contained in Clause 1 of the ICC5.8 The letter dated 26.5.2010 sent by the Appellant to the Respondent, in respect of the ships particulars, cannot be said to constitute prompt notification as the particulars of the subject vessels classification were not clearly specified therein. The Respondent may have, in good faith, assumed that I.R.S. meant that the subject vessel was classed with the Indian Register of Shipping, and may have consequently inferred that the subject vessel fell within the scope of the ICC clauseIt was only pursuant to the Appellants request for release of separate salvage security that the Respondents claim settling agents, M/s. W.K. Webster & Co., London by e-mail dated 9.8.2010 informed the Respondent that as per their investigation, the subject vessel was classed with Lloyds Register of Shipping only until 10.10.2007, after which the classification was withdrawn. Hence it was only from this e-mail that the Respondents came to know that the shipment may fall outside the scope of the insurance cover, as per the terms of the ICC. Consequently, we find that the prompt notification requirement has not been satisfied, and there is no ground for the application of the held covered clause5.9 Further, as per the observations of the Singapore Court of Appeal in Everbright Commercial Enterprises (supra), we consider it highly unlikely on the facts of this case that any prudent underwriter would have agreed to cover the risk involved in a such a high value shipment under the Marine Cargo Clause (which covers almost all risks of loss or damage), even though the Appellant had no documentary evidence on record to prove the classification of the subject vessel. However, neither of the parties has led evidence on whether the Respondent would have agreed to insure the policy for a reasonable premium had the correct particulars of the subject vessel been disclosed. Hence we do not consider it appropriate to record any findings on the same. In any case, such question does not arise inasmuch as the Appellant did not provide prompt notification in the first place. Hence, as provided under Clause 5 of the ICC, the insurers liability is automatically, we conclude that the Appellant had committed breach of the warranty contained in the Marine Insurance Policy requiring the subject vessel to be classed in accordance with the ICC, and such breach of warranty discharged the liability of the insurerA warranty imposes certain obligations on the insured, and Section 35(3) makes it amply clear that a warranty needs to be complied with, regardless of whether or not its non-compliance materially affects the risk involved in carrying the shipment. As a corollary, when a warranty is not complied with, i.e., there is a breach of warranty, the insurer is discharged from liability from the date of such breach, by virtue of Section 35(3). At the outset, therefore, it is important to note that the scheme of the 1963 Act is clear inasmuch as the automatic consequence of a breach of warranty is discharge of the insurers liability. Such discharge of liability does not require any express conduct or representation from the insurer6.1 In the instant case, though the Respondent initially issued the Cover Note dated 14.5.2010 without knowing the particulars of the vessel in which the Appellants cargo was to be carried, it subsequently issued the Marine Insurance Policy after the particulars of the subject vessel, including the purported classification of I.R.S., were received. However, while the importance of the ICC is undoubtedly more significant in cases of open-cover insurances where the specific details of the vessel carrying the cargo are not known to the insurer, as held in Nam Kwong Medicines (supra), a facultative insurance policy in which the details of the subject vessel are specified, need not be mutually exclusive with the ICCIt is not the Appellants case that the Respondent had chosen to issue the Marine Insurance Policy despite being informed by the Appellant that the vessel was non-classed. Rather the Appellant had represented that the subject vessel was I.R.S. classed. That being the case, as noted in Everbright Commercial Enterprises and Kam Hing Trading (supra), it was not the Respondents burden to have investigated the Appellants claim and informed the Appellant that the subject vessel was non-classed. Hence, at the outset it is important to note that the mere formal issuance of the Marine Insurance Policy by the Respondent does not indicate acceptance/waiver of the vessels classification or lack thereofHowever, it cannot be said that the ICC was an implied warranty within the meaning of Clause 5.2. It was stated on the face of the Marine Cargo Cover dated 14.5.2010 and the Marine Insurance Policy that the ICC is one of the warranties/terms of insuranceIn any case, the Appellants stand is that the subject vessel was classed with the INTLREG (which it has mistakenly referred to as I.R.S.). As the Singapore Court of Appeal has observed in Everbright Commercial Enterprises (supra) and as discussed supra, the very purpose of adopting the ICC is to ensure that the vessel chosen by the insured meets certain minimum standards of seaworthiness, by virtue of being classed with one of the well-established member societies of the IACS. The Appellant, having known that the subject vessel was classed with the INTLREG, which neither was nor is a member of the IACS, was privy to the fact that the subject vessel was not compliant with the minimum standard of seaworthiness as laid out in the Marine Insurance Policy. Clause 5.2 only waives breaches of implied warranties of seaworthiness where the assured was not privy to the unseaworthiness of the vessel. Hence, the Appellant would not be saved by Clause 5.2 of the Policy, and it cannot be said that the Respondent had waived the breach of warranty before the Appellants claim, by incorporating Clause 5.2 of the PolicyDuring the course of arguments, it was put to the learned counsel for the parties whether the act of provision of General Average Guarantee amounted to a waiver of breach of warranty. It is commonly understood that a waiver in the context of marine insurance, apart from one already provided for by way of held covered or other such terms in the insurance contract, must include two elements, namely, (i) knowledge of the insurer, and (ii) unequivocal representation of the insurer. The presence of both these elements is indispensable.6.4 Insofar as the element of knowledge is concerned, if the vessel carrying the insured cargo incurs loss, and the insurer seeks to investigate into whether or not there was a breach of warranty, no knowledge can be attributed to the insurer until such investigation is completed.(Id, 209.) Once there is knowledge, the second element, i.e., unequivocal representation comes into play. The representation must be of such a nature that it is sufficient for the insured to conclude that the insurer is aware of the breach of warranty and has chosen to waive such breach and indemnify the loss. The determination of whether or not these elements are present assumes more complexity in cases where such a representation comes from an agent of the insurer, or where such an agent has knowledge of the breach. However, these arguments with respect to representations made by the insurers agent have not been raised before us, and hence, such issues need not be addressed for the purposes of the present case6.5 Under the facts and circumstances of this case, the breach of warranty occurred when the Appellant informed the Respondent by letter dated 26.5.2010 that the subject vessel was classed by I.R.S., thereby indicating the subject vessel was compliant with the ICC. After the subject vessel ran aground on the midnight of 18.7.2010, the Appellant requested the issuance of General Average Guarantee, and the same was issued on 3.8.2010At the time the aforesaid General Average Guarantee dated 3.8.2010 was issued, the Respondent was still under the impression that the subject vessel is in compliance with the ICC. Obviously, such impression was based on the representation made by the Appellant that the subject vessel was classed with I.R.S. It was only by the e-mail dated 9.8.2010 from its claim settling agent that the Respondent came to know that the subject vessel does not meet the prescribed classification. Subsequently, the Respondent withdrew the Guarantee and refused to pay the separate salvage security. Hence, the issuance of the General Average Guarantee cannot not be understood as a waiver inasmuch as the Respondent, on the date of such issuance, did not have the knowledge of the breach of warranty committed by the Appellant and was only fulfilling its duty to contribute to the General Average (as explained supra) in good faith, as required by Clause 2 of the Marine Insurance Policy6.6 Further, in any case, at the time of issuing the General Average Guarantee, the Respondent did not expressly state that it was aware of the non-compliance with the ICC and it was waiving the same. In fact, the moment the breach of warranty was discovered, the Respondent initiated steps to withdraw the General Average Guarantee that had been issued by them and refused to pay the additional salvage security, which clearly demonstrates that there was no intent to waive the breach of warranty. Therefore, it cannot be said that the Respondent had waived the breach of warranty through its conduct or representations after the claim was made by the Appellant7. Since we have concluded that the liability of the insurer was discharged on account of the breach of warranty caused by non-compliance with the classification requirement within the ICC, we do not consider it relevant to deal with the age limitation requirement therein for the purpose of the present case8. It is pertinent to note that during the course of hearing the present appeal, three other parties, namely K. Amishkumar Trading Pvt. Ltd., Baijnath Melaram and Viraj Impex Pvt. Ltd. (Intervenors) filed Intervention Applications No. 3 of 2016, No. 4 of 2016 and No. 5 of 2016 respectively in the present appeal. The aforesaid Intervenors filed individual consumer complaints against the Respondent before the NCDRC, which are presently pending adjudication. | 1 | 10,624 | 3,168 | ### Instruction:
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Respondent had waived the breach of warranty before the Appellants claim, by incorporating Clause 5.2 of the Policy. 6.3 We may now turn to whether the Respondent waived the breach of warranty by its conduct or any representation. During the course of arguments, it was put to the learned counsel for the parties whether the act of provision of General Average Guarantee amounted to a waiver of breach of warranty. It is commonly understood that a waiver in the context of marine insurance, apart from one already provided for by way of held covered or other such terms in the insurance contract, must include two elements, namely, (i) knowledge of the insurer, and (ii) unequivocal representation of the insurer. The presence of both these elements is indispensable.For instance, after the occurrence of loss, even if the insurer makes an express representation that it would affirm the contract and indemnify the loss, if the insurer can prove that such a representation was made without the knowledge that there was a breach of warranty on part of the insured, the liability of the insurer would stand discharged from the date on which the warranty was breached. Similarly, mere knowledge on the part of the insurer that there was a breach of warranty would not amount to a waiver, in the absence of an express representation to that effect. (Baris Soyer, Warranties in Marine Insurance (Cavendish, 2001) 206-213.) 6.4 Insofar as the element of knowledge is concerned, if the vessel carrying the insured cargo incurs loss, and the insurer seeks to investigate into whether or not there was a breach of warranty, no knowledge can be attributed to the insurer until such investigation is completed.(Id, 209.) Once there is knowledge, the second element, i.e., unequivocal representation comes into play. The representation must be of such a nature that it is sufficient for the insured to conclude that the insurer is aware of the breach of warranty and has chosen to waive such breach and indemnify the loss. The determination of whether or not these elements are present assumes more complexity in cases where such a representation comes from an agent of the insurer, or where such an agent has knowledge of the breach. However, these arguments with respect to representations made by the insurers agent have not been raised before us, and hence, such issues need not be addressed for the purposes of the present case. 6.5 Under the facts and circumstances of this case, the breach of warranty occurred when the Appellant informed the Respondent by letter dated 26.5.2010 that the subject vessel was classed by I.R.S., thereby indicating the subject vessel was compliant with the ICC. After the subject vessel ran aground on the midnight of 18.7.2010, the Appellant requested the issuance of General Average Guarantee, and the same was issued on 3.8.2010. At the outset, the General Average Guarantee in Form B dated 3.8.2010 issued by the Respondent to the GAA was only an undertaking to pay the shipowners and the GAA on behalf of the Appellant for their contribution to the General Average, as and when such contribution was ascertained. This Guarantee was issued as per Clause 2 of the Marine Insurance Policy, under which the Respondent had agreed to cover all general average and salvage charges. Clause 2 reads as follows: 2. This insurance covers general average and salvage charges, adjusted or determined according to the contract of affreightment and/or the governing law and practice, incurred to avoid or in connection with the avoidance of loss from any cause, except those excluded in Clauses 4, 5, 6 and 7 or elsewhere in this insurance. (emphasis supplied) At the time the aforesaid General Average Guarantee dated 3.8.2010 was issued, the Respondent was still under the impression that the subject vessel is in compliance with the ICC. Obviously, such impression was based on the representation made by the Appellant that the subject vessel was classed with I.R.S. It was only by the e-mail dated 9.8.2010 from its claim settling agent that the Respondent came to know that the subject vessel does not meet the prescribed classification. Subsequently, the Respondent withdrew the Guarantee and refused to pay the separate salvage security. Hence, the issuance of the General Average Guarantee cannot not be understood as a waiver inasmuch as the Respondent, on the date of such issuance, did not have the knowledge of the breach of warranty committed by the Appellant and was only fulfilling its duty to contribute to the General Average (as explained supra) in good faith, as required by Clause 2 of the Marine Insurance Policy. 6.6 Further, in any case, at the time of issuing the General Average Guarantee, the Respondent did not expressly state that it was aware of the non-compliance with the ICC and it was waiving the same. In fact, the moment the breach of warranty was discovered, the Respondent initiated steps to withdraw the General Average Guarantee that had been issued by them and refused to pay the additional salvage security, which clearly demonstrates that there was no intent to waive the breach of warranty. Therefore, it cannot be said that the Respondent had waived the breach of warranty through its conduct or representations after the claim was made by the Appellant. 7. Since we have concluded that the liability of the insurer was discharged on account of the breach of warranty caused by non-compliance with the classification requirement within the ICC, we do not consider it relevant to deal with the age limitation requirement therein for the purpose of the present case. 8. It is pertinent to note that during the course of hearing the present appeal, three other parties, namely K. Amishkumar Trading Pvt. Ltd., Baijnath Melaram and Viraj Impex Pvt. Ltd. (Intervenors) filed Intervention Applications No. 3 of 2016, No. 4 of 2016 and No. 5 of 2016 respectively in the present appeal. The aforesaid Intervenors filed individual consumer complaints against the Respondent before the NCDRC, which are presently pending adjudication.
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Trading (supra), it was not the Respondents burden to have investigated the Appellants claim and informed the Appellant that the subject vessel was non-classed. Hence, at the outset it is important to note that the mere formal issuance of the Marine Insurance Policy by the Respondent does not indicate acceptance/waiver of the vessels classification or lack thereofHowever, it cannot be said that the ICC was an implied warranty within the meaning of Clause 5.2. It was stated on the face of the Marine Cargo Cover dated 14.5.2010 and the Marine Insurance Policy that the ICC is one of the warranties/terms of insuranceIn any case, the Appellants stand is that the subject vessel was classed with the INTLREG (which it has mistakenly referred to as I.R.S.). As the Singapore Court of Appeal has observed in Everbright Commercial Enterprises (supra) and as discussed supra, the very purpose of adopting the ICC is to ensure that the vessel chosen by the insured meets certain minimum standards of seaworthiness, by virtue of being classed with one of the well-established member societies of the IACS. The Appellant, having known that the subject vessel was classed with the INTLREG, which neither was nor is a member of the IACS, was privy to the fact that the subject vessel was not compliant with the minimum standard of seaworthiness as laid out in the Marine Insurance Policy. Clause 5.2 only waives breaches of implied warranties of seaworthiness where the assured was not privy to the unseaworthiness of the vessel. Hence, the Appellant would not be saved by Clause 5.2 of the Policy, and it cannot be said that the Respondent had waived the breach of warranty before the Appellants claim, by incorporating Clause 5.2 of the PolicyDuring the course of arguments, it was put to the learned counsel for the parties whether the act of provision of General Average Guarantee amounted to a waiver of breach of warranty. It is commonly understood that a waiver in the context of marine insurance, apart from one already provided for by way of held covered or other such terms in the insurance contract, must include two elements, namely, (i) knowledge of the insurer, and (ii) unequivocal representation of the insurer. The presence of both these elements is indispensable.6.4 Insofar as the element of knowledge is concerned, if the vessel carrying the insured cargo incurs loss, and the insurer seeks to investigate into whether or not there was a breach of warranty, no knowledge can be attributed to the insurer until such investigation is completed.(Id, 209.) Once there is knowledge, the second element, i.e., unequivocal representation comes into play. The representation must be of such a nature that it is sufficient for the insured to conclude that the insurer is aware of the breach of warranty and has chosen to waive such breach and indemnify the loss. The determination of whether or not these elements are present assumes more complexity in cases where such a representation comes from an agent of the insurer, or where such an agent has knowledge of the breach. However, these arguments with respect to representations made by the insurers agent have not been raised before us, and hence, such issues need not be addressed for the purposes of the present case6.5 Under the facts and circumstances of this case, the breach of warranty occurred when the Appellant informed the Respondent by letter dated 26.5.2010 that the subject vessel was classed by I.R.S., thereby indicating the subject vessel was compliant with the ICC. After the subject vessel ran aground on the midnight of 18.7.2010, the Appellant requested the issuance of General Average Guarantee, and the same was issued on 3.8.2010At the time the aforesaid General Average Guarantee dated 3.8.2010 was issued, the Respondent was still under the impression that the subject vessel is in compliance with the ICC. Obviously, such impression was based on the representation made by the Appellant that the subject vessel was classed with I.R.S. It was only by the e-mail dated 9.8.2010 from its claim settling agent that the Respondent came to know that the subject vessel does not meet the prescribed classification. Subsequently, the Respondent withdrew the Guarantee and refused to pay the separate salvage security. Hence, the issuance of the General Average Guarantee cannot not be understood as a waiver inasmuch as the Respondent, on the date of such issuance, did not have the knowledge of the breach of warranty committed by the Appellant and was only fulfilling its duty to contribute to the General Average (as explained supra) in good faith, as required by Clause 2 of the Marine Insurance Policy6.6 Further, in any case, at the time of issuing the General Average Guarantee, the Respondent did not expressly state that it was aware of the non-compliance with the ICC and it was waiving the same. In fact, the moment the breach of warranty was discovered, the Respondent initiated steps to withdraw the General Average Guarantee that had been issued by them and refused to pay the additional salvage security, which clearly demonstrates that there was no intent to waive the breach of warranty. Therefore, it cannot be said that the Respondent had waived the breach of warranty through its conduct or representations after the claim was made by the Appellant7. Since we have concluded that the liability of the insurer was discharged on account of the breach of warranty caused by non-compliance with the classification requirement within the ICC, we do not consider it relevant to deal with the age limitation requirement therein for the purpose of the present case8. It is pertinent to note that during the course of hearing the present appeal, three other parties, namely K. Amishkumar Trading Pvt. Ltd., Baijnath Melaram and Viraj Impex Pvt. Ltd. (Intervenors) filed Intervention Applications No. 3 of 2016, No. 4 of 2016 and No. 5 of 2016 respectively in the present appeal. The aforesaid Intervenors filed individual consumer complaints against the Respondent before the NCDRC, which are presently pending adjudication.
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M/S. Haji Esmail Noor Mohammad & Co. And Ors Vs. The Competent Officer, Lucknow & Ors | by the State Government, had his main office at Mussoorie in Uttar Pradesh, heard the appeal at Allahabad and dismissed it there. Later on, his main office was shifted to Delhi. Section 2 (a) of the Evacuee Interest (Separation) Act, l951 (Act No. 64 of 1951) defines "appellate officer thus :"appellate" officer means an officer appointed as such by the State Government under S. 13." 14. Under S. 13 of the said Act, the State Government with the approval of the Central Government may, by notification in the Official Gazette, appoint as many appellate officers as may be necessary for the purpose of hearing appeals against the orders of the competent officers and an appellate of officer Shall have jurisdiction over such local are or areas as may be specified in the notification. Sections 14 to 18 provide for filing of appeals and also define the powers of the competent appellate officers in the matter of disposing of those appeals. The Appellate Officer, therefore, derives his jurisdiction under a State statute, he is appointed by the State Government, though in consultation with the Central Government, and exercises his jurisdiction within the territorial limits of the High Court. It appears that the same officer is also appointed by other States and that for convenience his office it now situated at Delhi, though he dispose of appeals pertaining to each State only in that State. 15. On these facts the question arises whether the High Court of Allahabad has jurisdiction to issue a writ under Art. 226 of the Constitution against the Appellate Officer. It has now been well settled that under Art. 226 of the Constitution, before it was amended, the High Court had no jurisdiction to issue a writ thereunder against a person or authority unless the person or authority resided or was located within the territorial jurisdiction of the appropriate High Court: See Election Commission, India v. Saka Venkata Rao. I953 .SCR 1144 (AIR 1953 SC 210 ) and Lt. Col. Khajoor Singh v. Union of India, 1961-2 SCR 828 : (AIR 1961 SC 532 ). 16. In the context of jurisdiction of the High Court to issue a writ of certiorari against orders made by a hierarchy of tribunals or authorities, two situations arise, namely, (i) where the order of an appellate authority or tribunal, having its office outside the territorial jurisdiction of the High Court, is a nullity, and (ii) where the order of the original authority within the territorial jurisdiction of the High Court merges with that of the appellate authority outside its territorial jurisdiction, in the former case the appropriate High Court can issue a writ against the order of the original authority and in the latter it cannot : see Thangal Kunjo Musaliar v. M. Venkatatchalam Potti, 1955-2 SCR 1196 : (AIR 1956 SC 246 ) Collector of Customs Calcutta v. East India Commercial, Co. Calcutta, 1963-2 SCR 563 : (AIR 1963 SC 1124 ) and Shriram Jhunjhunwala v. State of Bombay, AIR 1962 SC 670 . This Court has also held that in all cases after the appellate authority has deposed of the appeal, the operative order was of the final authority whether it has reversed, modified or confirmed the original order : see 1963 SCR 563 : (AIR 1963 SC 1124 ).Though Das, C. j in State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595 at p. 610: (AIR 1958 SC 86 at p. 94), was not able to equate the orders made in departmental enquiries with decrees in civil Courts in the context of the doctrine of merger, this Court in 1963-2 SCR 563 : (AIR 1963 SC 1124 ), distinguished that case with the following observations at p. 573 (of SCR): (at p. 1127 of AIR) :"That case was not concerned with the territorial jurisdiction of the High Court where the original authority is within such territorial jurisdiction while the appellate authority is not and must, therefore, be confined to the special facts with which it was dealing." In that case the Court held that, as the Central Board of Revenue which had confirmed the order of the Collector of Customs had its office in New Delhi, the Calcutta High Court could not issue a Writ against it. But in none of the cases the Court considered a situation similar to that now presented to us. They dealt with the case of an appellate authority or tribunal which had been appointed by the Central Government and was disposing of only statutory appeals or other proceedings in a place outside the territorial jurisdiction of the concerned High Court though in one of the cases, i.e., 1953 SCR 1144 : (AIR 1953 SC 210 ), the Central Authority for convenience heard the parties and made the order within the territorial jurisdiction of the High Court. In all those cases the appellate authority, both factually and legally, had its residence or location outside the territorial jurisdiction of the High Court. But in the present case, the appellate authority, though for convenience is having its head office in New Delhi is factually and legally functioning under the State Act within the territorial jurisdiction of the High Court. To hold that such an authority which is appointed by the State Government and holds office, entertains and disposes of appeals within the State is outside the jurisdiction of the High Court is to carry technicality beyond reasonable limits. One can hold reasonably that such an appellate authority is located within the territorial limits of the High Court for the purpose of disposing of the appeals under the Act. This is a converse case where legally and factually the appellate authority is located in the State though for convenience it also holds office in New Delhi, as presumably the same officer has been appointed appellate officer by other States under different Acts. We, therefore, hold that the High Court has jurisdiction to issue a writ in appropriate cases against such an authority under Art 226. 17. | 0[ds]In the instant case, from the narration of the facts it is clear that Abdul Latif Hajee Esmail, in view of the disturbed conditions, went away to Pakistan in the year 1948 and therefore, he was an evacuee within the meaning of the U. P. Ordinance 1 of 1949 . His property , i. e., his interest in the partnership business, automatically vested under the Ordinance in the Custodian. The Deputy Custodian of Evacuee Property Kanpur. Issued notice to the firm on September 7, 1949, informing the firm that the Kanpur property of the firm would be taken possession. The said vesting was deemed to have taken place under the Central Ordinance 27 of 1949 and the Central Act 31 of 1950. Subsequent proceedings were taken under the provision of the said Central Ordinance and Act.As stated above, the automatic vesting of Abdul Latif Hajee Esmails share in the firm was continued by Central Ordinance 27 of 1949 and Central Act 31 of 1950 by the deeming provisions contained therein. Therefore, no question of issuing further, notice or making a declaration that the said interest was evacuee property under S. 7 (1) of the Ordinance arises. Section 7 only applies to properties other than those which been vested automatically in the Custodian. Such a vesting cannot be reopened under the Central Ordinance or the Central Act, for it has already vested thereunder by fiction. It follows that the petitioners have no interest in the share of Abdul Latif Hajee Esmail in the firm which had vested in the CustodianThat apart, after the Central Act 31 of 1950 came into force on April 17,1950, the Deputy Custodian of Evacuee Property (Judicial) Allahabad, made an order an order on the objection filed by the firm . Therein he held that the share of Abdul Latif Hajee Esmail in the firm i.e., 5 annas out of 19 annas and 3 pies, vested in ;the Custodian and on that finding declared it to be evacuee property.That order had become final. The firm did not take any further proceedings under the Act to set aside that order which had become final. It is no longer open to it to question this finding. It follows that the petitioners have no fundament right in regard to the interest of Abdul Latif Esmail in the partnershipBut this will not dispose of the petition. The petition is not solely based upon the fundamental right in respect of the interest of Abdul Latif Hajee Esmail, for the allegations made in the petition and the reliefs asked for disclose that the petitioners case is that the fundamental right of the firm and its partners is infringed by the impugned orders in the manner mentioned in the petition. But the reliefs asked for are similar to those asked for in the appeals. As we are remanding the appeals to the High Court for decision on merits the other question raised in the writ petition can more conveniently be disposed of only after the High Court gives its findings on the other points raised in the appeals. If the appeals succeed in the High Courts , this writ petition will become unnecessary; if they fail, the finding therein will be binding in the writ petition. In that event, if appeals are filed in this Court, the question will be finally decided therein. In these circumstances we dismiss the writ, petition without prejudice to the petitioners personal rights which we will presently consider in the appeals. This order will be subject to the final orders that may be passed in the petitions, by the High Court pursuant to the order of remand that we are .making in the appeals. There will be no order as to costsIn that case the Court held that, as the Central Board of Revenue which had confirmed the order of the Collector of Customs had its office in New Delhi, the Calcutta High Court could not issue a Writ against it. But in none of the cases the Court considered a situation similar to that now presented to us. They dealt with the case of an appellate authority or tribunal which had been appointed by the Central Government and was disposing of only statutory appeals or other proceedings in a place outside the territorial jurisdiction of the concerned High Court though in one of the cases, i.e., 1953 SCR 1144 : (AIR 1953 SC 210 ), the Central Authority for convenience heard the parties and made the order within the territorial jurisdiction of the High Court. In all those cases the appellate authority, both factually and legally, had its residence or location outside the territorial jurisdiction of the High Court. But in the present case, the appellate authority, though for convenience is having its head office in New Delhi is factually and legally functioning under the State Act within the territorial jurisdiction of the High Court. To hold that such an authority which is appointed by the State Government and holds office, entertains and disposes of appeals within the State is outside the jurisdiction of the High Court is to carry technicality beyond reasonable limits. One can hold reasonably that such an appellate authority is located within the territorial limits of the High Court for the purpose of disposing of the appeals under the Act. This is a converse case where legally and factually the appellate authority is located in the State though for convenience it also holds office in New Delhi, as presumably the same officer has been appointed appellate officer by other States under different Acts. We, therefore, hold that the High Court has jurisdiction to issue a writ in appropriate cases against such an authority under Art 226. | 0 | 5,139 | 1,028 | ### Instruction:
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by the State Government, had his main office at Mussoorie in Uttar Pradesh, heard the appeal at Allahabad and dismissed it there. Later on, his main office was shifted to Delhi. Section 2 (a) of the Evacuee Interest (Separation) Act, l951 (Act No. 64 of 1951) defines "appellate officer thus :"appellate" officer means an officer appointed as such by the State Government under S. 13." 14. Under S. 13 of the said Act, the State Government with the approval of the Central Government may, by notification in the Official Gazette, appoint as many appellate officers as may be necessary for the purpose of hearing appeals against the orders of the competent officers and an appellate of officer Shall have jurisdiction over such local are or areas as may be specified in the notification. Sections 14 to 18 provide for filing of appeals and also define the powers of the competent appellate officers in the matter of disposing of those appeals. The Appellate Officer, therefore, derives his jurisdiction under a State statute, he is appointed by the State Government, though in consultation with the Central Government, and exercises his jurisdiction within the territorial limits of the High Court. It appears that the same officer is also appointed by other States and that for convenience his office it now situated at Delhi, though he dispose of appeals pertaining to each State only in that State. 15. On these facts the question arises whether the High Court of Allahabad has jurisdiction to issue a writ under Art. 226 of the Constitution against the Appellate Officer. It has now been well settled that under Art. 226 of the Constitution, before it was amended, the High Court had no jurisdiction to issue a writ thereunder against a person or authority unless the person or authority resided or was located within the territorial jurisdiction of the appropriate High Court: See Election Commission, India v. Saka Venkata Rao. I953 .SCR 1144 (AIR 1953 SC 210 ) and Lt. Col. Khajoor Singh v. Union of India, 1961-2 SCR 828 : (AIR 1961 SC 532 ). 16. In the context of jurisdiction of the High Court to issue a writ of certiorari against orders made by a hierarchy of tribunals or authorities, two situations arise, namely, (i) where the order of an appellate authority or tribunal, having its office outside the territorial jurisdiction of the High Court, is a nullity, and (ii) where the order of the original authority within the territorial jurisdiction of the High Court merges with that of the appellate authority outside its territorial jurisdiction, in the former case the appropriate High Court can issue a writ against the order of the original authority and in the latter it cannot : see Thangal Kunjo Musaliar v. M. Venkatatchalam Potti, 1955-2 SCR 1196 : (AIR 1956 SC 246 ) Collector of Customs Calcutta v. East India Commercial, Co. Calcutta, 1963-2 SCR 563 : (AIR 1963 SC 1124 ) and Shriram Jhunjhunwala v. State of Bombay, AIR 1962 SC 670 . This Court has also held that in all cases after the appellate authority has deposed of the appeal, the operative order was of the final authority whether it has reversed, modified or confirmed the original order : see 1963 SCR 563 : (AIR 1963 SC 1124 ).Though Das, C. j in State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595 at p. 610: (AIR 1958 SC 86 at p. 94), was not able to equate the orders made in departmental enquiries with decrees in civil Courts in the context of the doctrine of merger, this Court in 1963-2 SCR 563 : (AIR 1963 SC 1124 ), distinguished that case with the following observations at p. 573 (of SCR): (at p. 1127 of AIR) :"That case was not concerned with the territorial jurisdiction of the High Court where the original authority is within such territorial jurisdiction while the appellate authority is not and must, therefore, be confined to the special facts with which it was dealing." In that case the Court held that, as the Central Board of Revenue which had confirmed the order of the Collector of Customs had its office in New Delhi, the Calcutta High Court could not issue a Writ against it. But in none of the cases the Court considered a situation similar to that now presented to us. They dealt with the case of an appellate authority or tribunal which had been appointed by the Central Government and was disposing of only statutory appeals or other proceedings in a place outside the territorial jurisdiction of the concerned High Court though in one of the cases, i.e., 1953 SCR 1144 : (AIR 1953 SC 210 ), the Central Authority for convenience heard the parties and made the order within the territorial jurisdiction of the High Court. In all those cases the appellate authority, both factually and legally, had its residence or location outside the territorial jurisdiction of the High Court. But in the present case, the appellate authority, though for convenience is having its head office in New Delhi is factually and legally functioning under the State Act within the territorial jurisdiction of the High Court. To hold that such an authority which is appointed by the State Government and holds office, entertains and disposes of appeals within the State is outside the jurisdiction of the High Court is to carry technicality beyond reasonable limits. One can hold reasonably that such an appellate authority is located within the territorial limits of the High Court for the purpose of disposing of the appeals under the Act. This is a converse case where legally and factually the appellate authority is located in the State though for convenience it also holds office in New Delhi, as presumably the same officer has been appointed appellate officer by other States under different Acts. We, therefore, hold that the High Court has jurisdiction to issue a writ in appropriate cases against such an authority under Art 226. 17.
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In the instant case, from the narration of the facts it is clear that Abdul Latif Hajee Esmail, in view of the disturbed conditions, went away to Pakistan in the year 1948 and therefore, he was an evacuee within the meaning of the U. P. Ordinance 1 of 1949 . His property , i. e., his interest in the partnership business, automatically vested under the Ordinance in the Custodian. The Deputy Custodian of Evacuee Property Kanpur. Issued notice to the firm on September 7, 1949, informing the firm that the Kanpur property of the firm would be taken possession. The said vesting was deemed to have taken place under the Central Ordinance 27 of 1949 and the Central Act 31 of 1950. Subsequent proceedings were taken under the provision of the said Central Ordinance and Act.As stated above, the automatic vesting of Abdul Latif Hajee Esmails share in the firm was continued by Central Ordinance 27 of 1949 and Central Act 31 of 1950 by the deeming provisions contained therein. Therefore, no question of issuing further, notice or making a declaration that the said interest was evacuee property under S. 7 (1) of the Ordinance arises. Section 7 only applies to properties other than those which been vested automatically in the Custodian. Such a vesting cannot be reopened under the Central Ordinance or the Central Act, for it has already vested thereunder by fiction. It follows that the petitioners have no interest in the share of Abdul Latif Hajee Esmail in the firm which had vested in the CustodianThat apart, after the Central Act 31 of 1950 came into force on April 17,1950, the Deputy Custodian of Evacuee Property (Judicial) Allahabad, made an order an order on the objection filed by the firm . Therein he held that the share of Abdul Latif Hajee Esmail in the firm i.e., 5 annas out of 19 annas and 3 pies, vested in ;the Custodian and on that finding declared it to be evacuee property.That order had become final. The firm did not take any further proceedings under the Act to set aside that order which had become final. It is no longer open to it to question this finding. It follows that the petitioners have no fundament right in regard to the interest of Abdul Latif Esmail in the partnershipBut this will not dispose of the petition. The petition is not solely based upon the fundamental right in respect of the interest of Abdul Latif Hajee Esmail, for the allegations made in the petition and the reliefs asked for disclose that the petitioners case is that the fundamental right of the firm and its partners is infringed by the impugned orders in the manner mentioned in the petition. But the reliefs asked for are similar to those asked for in the appeals. As we are remanding the appeals to the High Court for decision on merits the other question raised in the writ petition can more conveniently be disposed of only after the High Court gives its findings on the other points raised in the appeals. If the appeals succeed in the High Courts , this writ petition will become unnecessary; if they fail, the finding therein will be binding in the writ petition. In that event, if appeals are filed in this Court, the question will be finally decided therein. In these circumstances we dismiss the writ, petition without prejudice to the petitioners personal rights which we will presently consider in the appeals. This order will be subject to the final orders that may be passed in the petitions, by the High Court pursuant to the order of remand that we are .making in the appeals. There will be no order as to costsIn that case the Court held that, as the Central Board of Revenue which had confirmed the order of the Collector of Customs had its office in New Delhi, the Calcutta High Court could not issue a Writ against it. But in none of the cases the Court considered a situation similar to that now presented to us. They dealt with the case of an appellate authority or tribunal which had been appointed by the Central Government and was disposing of only statutory appeals or other proceedings in a place outside the territorial jurisdiction of the concerned High Court though in one of the cases, i.e., 1953 SCR 1144 : (AIR 1953 SC 210 ), the Central Authority for convenience heard the parties and made the order within the territorial jurisdiction of the High Court. In all those cases the appellate authority, both factually and legally, had its residence or location outside the territorial jurisdiction of the High Court. But in the present case, the appellate authority, though for convenience is having its head office in New Delhi is factually and legally functioning under the State Act within the territorial jurisdiction of the High Court. To hold that such an authority which is appointed by the State Government and holds office, entertains and disposes of appeals within the State is outside the jurisdiction of the High Court is to carry technicality beyond reasonable limits. One can hold reasonably that such an appellate authority is located within the territorial limits of the High Court for the purpose of disposing of the appeals under the Act. This is a converse case where legally and factually the appellate authority is located in the State though for convenience it also holds office in New Delhi, as presumably the same officer has been appointed appellate officer by other States under different Acts. We, therefore, hold that the High Court has jurisdiction to issue a writ in appropriate cases against such an authority under Art 226.
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Pratap Singh Yadav Vs. Haryana Urban Development Authority and Ors | direct the Chief Administrator, HUDA to hold a preliminary fact finding inquiry into the above aspects and submit a report to this court setting out the circumstances in which the developments referred to above have taken place while the matter was sub judice before the State Commission and the National Commission. Those responsible for granting permission and executing the conveyance deed in respect of the plot in question without a proper and formal order of allotment in favour of the petitioner shall also be identified. Pending further orders from this Court the demolition/dispossession of the petitioner from the plot in question shall remain stayed. The report of the Chief Administrator shall reach this Court within three months.?5. Pursuant to the above direction an enquiry has been conducted by HUDA and a Report dated 16th December, 2013 relating to the same filed in this Court along with an affidavit sworn in by the Estate Officer, HUDA. On a perusal of the Report it appears that HUDA has found Smt. Sushma Gulati and Shri Bihari Lal, Assistant and Shri Jai Bhagwan, Deputy Superintendent responsible for dereliction of their duties. The report suggests that these officers have failed to bring the full facts of the case to the notice of the then Estate Officer. The Report further suggests that Shri J.S. Ahlawat, Administrator, Faridabad was responsible for approving the allotment of the plot pursuant to the execution petition filed against HUDA. This appears to have been done on the advice of Shri Harkesh, Assistant District Attorney and Shri Mahinder Singh Kaushik, Deputy District Attorney. The report also holds several other officials responsible for lapses in the matter of granting approval for the allotment of plot, execution of Conveyance Deed, approval of the building plans and issue of full occupation certificate. Suffice it to say that the entire process leading to the allotment of the plot, execution of conveyance deed, approval of building plan, issue of full occupation certification has been vitiated by reason of complicity of the officials working in the HUDA and named in the Report. 6. Two issues arise for consideration in the above backdrop. The first concerns the action which ought to be taken against the officials of HUDA found responsible for the mischief while the second relates to the approach that needs to be adopted with regard to the allotment and subsequent construction of the house by the beneficiary of the mischief. As regards the complicity of officials of HUDA in the entire process, the preliminary report submitted to this court by the Chief Administrator, HUDA leaves no room for taking a lenient view either by HUDA or by this Court. HUDA is bound to take proper disciplinary action against those found responsible and to suitably punish them in accordance with law. To that extent there is no difficulty in issuing a direction, which we do hereby issue. 7. Coming to the second aspect we had by our order dated 29th April, 2016 directed HUDA to file an affidavit indicating the prevalent rate of land in Sector II, Faridabad for the period 2015-16 of plots of the size of 235 sq. meter. HUDA has accordingly filed an affidavit by the Estate Officer stating that the rate for allotment for land in Sector II, Faridabad for the period 2015-16 is Rs.18,000/- per sq. meter. It was contended on behalf of the petitioners, who happen to be the legal heirs of the deceased allotee that this Court has in Pradeep Sharma vs. Chief Administrator, Haryana Urban Dev. Authority & Anr. in Civil Appeal Nos.52-53 of 2016 in almost identical circumstances directed the continuance of allotment made in favour of allottee subject to his paying the prevalent HUDA rate for the plot of land upon which he had constructed a house in Sector 64 of Faridabad in almost similar circumstances and in connivance with HUDA officials. A reading of the said order does support that submission. That too was a case where the complainant had received the refund of the amount deposited by him and then approached the District Forum for restoration of his allotment. The District Forum had as in the present case ordered restoration of the allotment to the complainant after adjustment. While an appeal was pending before the State Commission, the complainant had in that case filed an execution petition and got the allotment restored along with the possession of the plot. The State Commission had subsequently set aside the order passed by the District Forum and dismissed the complaint but the complainant had in the meantime constructed a building over the plot in question. It was in that background that we had, as in the present case directed an enquiry into the circumstances in which the allotment of the plot and other steps like sanction of the building plans and no encumbrance certificate and other certificates were issued to the complainant. The HUDA had accordingly conducted an enquiry as is the position in the instant case also and found that some of the officials had been responsible for conniving with the complainant in that case. This Court had taking into consideration all the circumstances and especially the fact that the complainant had already constructed a house over the plot in question directed the appellant would retain the same on his depositing the prevailing cost of the plot in dispute after adjusting the amount already deposited. We have no reason to deny similar relief to the appellant in the instant case also. It is true that the appellant has been a beneficiary of what is and can be said to be a fraudulent allotment yet keeping in view the peculiar facts and circumstances of the case demolition of the house and restoration of the plot to HUDA may at this stage work rather harshly for him/them. The proper course, therefore, is to allow the allotment to continue subject to the appellant depositing the prevalent price of the plot at the rate of Rs.18,000/- per square meter as indicated above. | 1[ds]As regards the complicity of officials of HUDA in the entire process, the preliminary report submitted to this court by the Chief Administrator, HUDA leaves no room for taking a lenient view either by HUDA or by this Court. HUDA is bound to take proper disciplinary action against those found responsible and to suitably punish them in accordance with law. To that extent there is no difficulty in issuing a direction, which we do hereby issue.Coming to the second aspect we had by our order dated 29th April, 2016 directed HUDA to file an affidavit indicating the prevalent rate of land in Sector II, Faridabad for the period 2015-16 of plots of the size of 235 sq. meter. HUDA has accordingly filed an affidavit by the Estate Officer stating that the rate for allotment for land in Sector II, Faridabad for the period 2015-16 is Rs.18,000/- per sq. meter. It was contended on behalf of the petitioners, who happen to be the legal heirs of the deceased allotee that this Court has in Pradeep Sharma vs. Chief Administrator, Haryana Urban Dev. Authority & Anr. in Civil Appeal Nos.52-53 of 2016 in almost identical circumstances directed the continuance of allotment made in favour of allottee subject to his paying the prevalent HUDA rate for the plot of land upon which he had constructed a house in Sector 64 of Faridabad in almost similar circumstances and in connivance with HUDA officials. A reading of the said order does support that submission. That too was a case where the complainant had received the refund of the amount deposited by him and then approached the District Forum for restoration of his allotment. The District Forum had as in the present case ordered restoration of the allotment to the complainant after adjustment. While an appeal was pending before the State Commission, the complainant had in that case filed an execution petition and got the allotment restored along with the possession of the plot. The State Commission had subsequently set aside the order passed by the District Forum and dismissed the complaint but the complainant had in the meantime constructed a building over the plot in question. It was in that background that we had, as in the present case directed an enquiry into the circumstances in which the allotment of the plot and other steps like sanction of the building plans and no encumbrance certificate and other certificates were issued to the complainant. The HUDA had accordingly conducted an enquiry as is the position in the instant case also and found that some of the officials had been responsible for conniving with the complainant in that case. This Court had taking into consideration all the circumstances and especially the fact that the complainant had already constructed a house over the plot in question directed the appellant would retain the same on his depositing the prevailing cost of the plot in dispute after adjusting the amount already deposited. We have no reason to deny similar relief to the appellant in the instant case also. It is true that the appellant has been a beneficiary of what is and can be said to be a fraudulent allotment yet keeping in view the peculiar facts and circumstances of the case demolition of the house and restoration of the plot to HUDA may at this stage work rather harshly for him/them. The proper course, therefore, is to allow the allotment to continue subject to the appellant depositing the prevalent price of the plot at the rate of Rs.18,000/- per square meter as indicated | 1 | 2,149 | 629 | ### Instruction:
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direct the Chief Administrator, HUDA to hold a preliminary fact finding inquiry into the above aspects and submit a report to this court setting out the circumstances in which the developments referred to above have taken place while the matter was sub judice before the State Commission and the National Commission. Those responsible for granting permission and executing the conveyance deed in respect of the plot in question without a proper and formal order of allotment in favour of the petitioner shall also be identified. Pending further orders from this Court the demolition/dispossession of the petitioner from the plot in question shall remain stayed. The report of the Chief Administrator shall reach this Court within three months.?5. Pursuant to the above direction an enquiry has been conducted by HUDA and a Report dated 16th December, 2013 relating to the same filed in this Court along with an affidavit sworn in by the Estate Officer, HUDA. On a perusal of the Report it appears that HUDA has found Smt. Sushma Gulati and Shri Bihari Lal, Assistant and Shri Jai Bhagwan, Deputy Superintendent responsible for dereliction of their duties. The report suggests that these officers have failed to bring the full facts of the case to the notice of the then Estate Officer. The Report further suggests that Shri J.S. Ahlawat, Administrator, Faridabad was responsible for approving the allotment of the plot pursuant to the execution petition filed against HUDA. This appears to have been done on the advice of Shri Harkesh, Assistant District Attorney and Shri Mahinder Singh Kaushik, Deputy District Attorney. The report also holds several other officials responsible for lapses in the matter of granting approval for the allotment of plot, execution of Conveyance Deed, approval of the building plans and issue of full occupation certificate. Suffice it to say that the entire process leading to the allotment of the plot, execution of conveyance deed, approval of building plan, issue of full occupation certification has been vitiated by reason of complicity of the officials working in the HUDA and named in the Report. 6. Two issues arise for consideration in the above backdrop. The first concerns the action which ought to be taken against the officials of HUDA found responsible for the mischief while the second relates to the approach that needs to be adopted with regard to the allotment and subsequent construction of the house by the beneficiary of the mischief. As regards the complicity of officials of HUDA in the entire process, the preliminary report submitted to this court by the Chief Administrator, HUDA leaves no room for taking a lenient view either by HUDA or by this Court. HUDA is bound to take proper disciplinary action against those found responsible and to suitably punish them in accordance with law. To that extent there is no difficulty in issuing a direction, which we do hereby issue. 7. Coming to the second aspect we had by our order dated 29th April, 2016 directed HUDA to file an affidavit indicating the prevalent rate of land in Sector II, Faridabad for the period 2015-16 of plots of the size of 235 sq. meter. HUDA has accordingly filed an affidavit by the Estate Officer stating that the rate for allotment for land in Sector II, Faridabad for the period 2015-16 is Rs.18,000/- per sq. meter. It was contended on behalf of the petitioners, who happen to be the legal heirs of the deceased allotee that this Court has in Pradeep Sharma vs. Chief Administrator, Haryana Urban Dev. Authority & Anr. in Civil Appeal Nos.52-53 of 2016 in almost identical circumstances directed the continuance of allotment made in favour of allottee subject to his paying the prevalent HUDA rate for the plot of land upon which he had constructed a house in Sector 64 of Faridabad in almost similar circumstances and in connivance with HUDA officials. A reading of the said order does support that submission. That too was a case where the complainant had received the refund of the amount deposited by him and then approached the District Forum for restoration of his allotment. The District Forum had as in the present case ordered restoration of the allotment to the complainant after adjustment. While an appeal was pending before the State Commission, the complainant had in that case filed an execution petition and got the allotment restored along with the possession of the plot. The State Commission had subsequently set aside the order passed by the District Forum and dismissed the complaint but the complainant had in the meantime constructed a building over the plot in question. It was in that background that we had, as in the present case directed an enquiry into the circumstances in which the allotment of the plot and other steps like sanction of the building plans and no encumbrance certificate and other certificates were issued to the complainant. The HUDA had accordingly conducted an enquiry as is the position in the instant case also and found that some of the officials had been responsible for conniving with the complainant in that case. This Court had taking into consideration all the circumstances and especially the fact that the complainant had already constructed a house over the plot in question directed the appellant would retain the same on his depositing the prevailing cost of the plot in dispute after adjusting the amount already deposited. We have no reason to deny similar relief to the appellant in the instant case also. It is true that the appellant has been a beneficiary of what is and can be said to be a fraudulent allotment yet keeping in view the peculiar facts and circumstances of the case demolition of the house and restoration of the plot to HUDA may at this stage work rather harshly for him/them. The proper course, therefore, is to allow the allotment to continue subject to the appellant depositing the prevalent price of the plot at the rate of Rs.18,000/- per square meter as indicated above.
### Response:
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### Explanation:
As regards the complicity of officials of HUDA in the entire process, the preliminary report submitted to this court by the Chief Administrator, HUDA leaves no room for taking a lenient view either by HUDA or by this Court. HUDA is bound to take proper disciplinary action against those found responsible and to suitably punish them in accordance with law. To that extent there is no difficulty in issuing a direction, which we do hereby issue.Coming to the second aspect we had by our order dated 29th April, 2016 directed HUDA to file an affidavit indicating the prevalent rate of land in Sector II, Faridabad for the period 2015-16 of plots of the size of 235 sq. meter. HUDA has accordingly filed an affidavit by the Estate Officer stating that the rate for allotment for land in Sector II, Faridabad for the period 2015-16 is Rs.18,000/- per sq. meter. It was contended on behalf of the petitioners, who happen to be the legal heirs of the deceased allotee that this Court has in Pradeep Sharma vs. Chief Administrator, Haryana Urban Dev. Authority & Anr. in Civil Appeal Nos.52-53 of 2016 in almost identical circumstances directed the continuance of allotment made in favour of allottee subject to his paying the prevalent HUDA rate for the plot of land upon which he had constructed a house in Sector 64 of Faridabad in almost similar circumstances and in connivance with HUDA officials. A reading of the said order does support that submission. That too was a case where the complainant had received the refund of the amount deposited by him and then approached the District Forum for restoration of his allotment. The District Forum had as in the present case ordered restoration of the allotment to the complainant after adjustment. While an appeal was pending before the State Commission, the complainant had in that case filed an execution petition and got the allotment restored along with the possession of the plot. The State Commission had subsequently set aside the order passed by the District Forum and dismissed the complaint but the complainant had in the meantime constructed a building over the plot in question. It was in that background that we had, as in the present case directed an enquiry into the circumstances in which the allotment of the plot and other steps like sanction of the building plans and no encumbrance certificate and other certificates were issued to the complainant. The HUDA had accordingly conducted an enquiry as is the position in the instant case also and found that some of the officials had been responsible for conniving with the complainant in that case. This Court had taking into consideration all the circumstances and especially the fact that the complainant had already constructed a house over the plot in question directed the appellant would retain the same on his depositing the prevailing cost of the plot in dispute after adjusting the amount already deposited. We have no reason to deny similar relief to the appellant in the instant case also. It is true that the appellant has been a beneficiary of what is and can be said to be a fraudulent allotment yet keeping in view the peculiar facts and circumstances of the case demolition of the house and restoration of the plot to HUDA may at this stage work rather harshly for him/them. The proper course, therefore, is to allow the allotment to continue subject to the appellant depositing the prevalent price of the plot at the rate of Rs.18,000/- per square meter as indicated
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Indian Mineral & Chemicals Co. & Others Vs. Deutsche Bank | the cause of action arose within the jurisdiction of the Calcutta High Court. The learned Single Judge dismissed the application.9. The Division Bench accepted the submission of the respondent that although the pleadings in the plaint showed that the Calcutta High Court had jurisdiction to entertain the suit, the averments in the plaint were not borne out by the letter of credit which was annexed to the plaint. The Division Bench also accepted the respondents contention that the letter of credit was to be honoured by payment "at sight" and that if the terms and conditions of credit were fully complied with, the respondent would credit the account of UCO Bank, Dusseldorf Branch upon presentation of the documents indicated in the letter of credit. Payment at sight was therefore to be made at Dusseldorf and not in Calcutta as claimed in the plaint and as such no part of cause of action had arisen within the jurisdiction of the High Court. 10. We are of the opinion that the learned Judges erred in revoking leave under clause 12 of the Letters Patent in view of the clear assertions made in the plaint and the assertions in a plaint must be assumed to be true for the purpose of determining whether leave is liable to be revoked on a point of demurrer. [See Abdulla bin Ali vs. Galappa 1982 (3) SCC 487 ; Ritu Sachdev vs. Anita Jindal AIR 1982 Cal 333 and Secretary of State vs. Golabrai Paliram AIR 1932 Cal 146 ] In the plaint the jurisdiction of the High Court was claimed on the ground that: 1) UCO Banks branch which was within the Courts jurisdiction intimated the plaintiffs that the letter of Credit had been issued by the Respondent; 2) The documents were presented by the plaintiffs to the said branch of UCO Bank; and 3) Payment was to be received by the Plaintiffs from the said branch of UCO Bank. 11. The Division Bench could have held that what was alleged to be a part of the cause of action did not form part of the cause of action at all. This the Division Bench did not do. It was not open to the Division Bench to come to a contrary factual conclusion in respect of any of these three grounds. The appeal is, therefore, liable to be allowed on this ground alone. 12. Before us the respondent has submitted that even though the documents were presented by the appellants within the jurisdiction of the Calcutta High Court as claimed by it, there was no authorisation in favour of UCO Bank to accept presentation of the documents. It is said that the UCO Bank was only an advising bank and it was neither the confirming nor the negotiating bank and the therefore there was no valid presentation of documents at Calcutta. The respondent further submitted that the letter of credit provided for payment at sight and that was not conditional upon receipt of the documents by UCO Bank in Calcutta but by its branch of Germany. Finally it is said that the letter of credit was issued in Germany, that the entire transaction took place in Germany, that the documents and witnesses were present in Germany and that, the balance of convenience was in favour of the suit being tried at Germany. 13. On the question of balance of convenience, the Learned Single Judge had, after considering the facts, held that it would not be inconvenient for the respondent to defend the suit from its Branch Office in Calcutta. On the other hand, the appellants would have to incur huge expense and that too in Foreign Exchange in the event the suit was prosecuted in Germany especially as the appellants did not have any office in Germany. The Division Bench did not consider this aspect at all. Speaking for ourselves, we see no reason to interfere with the conclusion arrived at by the Learned Single Judge. 14. On the role of UCO Bank and the validity of the presentation, the respondent has relied upon passages from Pagets Law of Banking as well as the decision of this Court in Federation Bank Limited vs. V.M. Jog Engineering Ltd. and ors. (2001) 1 SCC 663 to contend that there was no valid presentation by the appellant at the counters of UCO Bank, Calcutta. This has been countered by the appellant who has referred to Benjamins Sale of Goods. What the role of UCO Bank in fact was is a mixed question of law and fact. At present, since we have to determine the courts jurisdiction ex facie the plaint, we cannot proceed on the assumption that UCO Bank was not authorised to receive the documents or that the payment under the Letter of Credit was to be made, as far as the appellants are concerned, at Dusseldorf. Ultimately it will depend upon whether UCO Bank was acting for the Respondent or the appellants. All these matters will have to be decided on evidence and cannot be decided on an application for revocation of leave under Clause 12 of the Letters Patent. 15. The observations of Rankin CJ in Secretary of State vs. Gulab Rai Pali Ram (supra) correctly represents the law as to how the Court should approach an application for revocation of leave: "I do really protest against questions of difficulty and importance being dealt with by an application to revoke the leave under Cl. 12, Letters Patent and to take the plaint off the file. Normally it is well settled that the proper way to plead to the jurisdiction of the Court is to take the plea in the written statement and as a substantive part of the defence. Except in the clearest cases that should be the course". (p. 147) 16. In the circumstances, we are of the view that the learned Single Judge was justified in rejecting the respondents application for revocation of leave. The Division Bench should not have allowed the respondents appeal. | 1[ds]10. We are of the opinion that the learned Judges erred in revoking leave under clause 12 of the Letters Patent in view of the clear assertions made in the plaint and the assertions in a plaint must be assumed to be true for the purpose of determining whether leave is liable to be revoked on a point ofThe Division Bench could have held that what was alleged to be a part of the cause of action did not form part of the cause of action at all. This the Division Bench did not do. It was not open to the Division Bench to come to a contrary factual conclusion in respect of any of these three grounds. The appeal is, therefore, liable to be allowed on this ground alone.On the question of balance of convenience, the Learned Single Judge had, after considering the facts, held that it would not be inconvenient for the respondent to defend the suit from its Branch Office in Calcutta. On the other hand, the appellants would have to incur huge expense and that too in Foreign Exchange in the event the suit was prosecuted in Germany especially as the appellants did not have any office in Germany. The Division Bench did not consider this aspect at all. Speaking for ourselves, we see no reason to interfere with the conclusion arrived at by the Learned Singlepresent, since we have to determine the courts jurisdiction ex facie the plaint, we cannot proceed on the assumption that UCO Bank was not authorised to receive the documents or that the payment under the Letter of Credit was to be made, as far as the appellants are concerned, at Dusseldorf. Ultimately it will depend upon whether UCO Bank was acting for the Respondent or the appellants. All these matters will have to be decided on evidence and cannot be decided on an application for revocation of leave under Clause 12 of the Letters Patent.In the circumstances, we are of the view that the learned Single Judge was justified in rejecting the respondents application for revocation of leave. The Division Bench should not have allowed the respondents appeal. | 1 | 2,034 | 387 | ### Instruction:
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the cause of action arose within the jurisdiction of the Calcutta High Court. The learned Single Judge dismissed the application.9. The Division Bench accepted the submission of the respondent that although the pleadings in the plaint showed that the Calcutta High Court had jurisdiction to entertain the suit, the averments in the plaint were not borne out by the letter of credit which was annexed to the plaint. The Division Bench also accepted the respondents contention that the letter of credit was to be honoured by payment "at sight" and that if the terms and conditions of credit were fully complied with, the respondent would credit the account of UCO Bank, Dusseldorf Branch upon presentation of the documents indicated in the letter of credit. Payment at sight was therefore to be made at Dusseldorf and not in Calcutta as claimed in the plaint and as such no part of cause of action had arisen within the jurisdiction of the High Court. 10. We are of the opinion that the learned Judges erred in revoking leave under clause 12 of the Letters Patent in view of the clear assertions made in the plaint and the assertions in a plaint must be assumed to be true for the purpose of determining whether leave is liable to be revoked on a point of demurrer. [See Abdulla bin Ali vs. Galappa 1982 (3) SCC 487 ; Ritu Sachdev vs. Anita Jindal AIR 1982 Cal 333 and Secretary of State vs. Golabrai Paliram AIR 1932 Cal 146 ] In the plaint the jurisdiction of the High Court was claimed on the ground that: 1) UCO Banks branch which was within the Courts jurisdiction intimated the plaintiffs that the letter of Credit had been issued by the Respondent; 2) The documents were presented by the plaintiffs to the said branch of UCO Bank; and 3) Payment was to be received by the Plaintiffs from the said branch of UCO Bank. 11. The Division Bench could have held that what was alleged to be a part of the cause of action did not form part of the cause of action at all. This the Division Bench did not do. It was not open to the Division Bench to come to a contrary factual conclusion in respect of any of these three grounds. The appeal is, therefore, liable to be allowed on this ground alone. 12. Before us the respondent has submitted that even though the documents were presented by the appellants within the jurisdiction of the Calcutta High Court as claimed by it, there was no authorisation in favour of UCO Bank to accept presentation of the documents. It is said that the UCO Bank was only an advising bank and it was neither the confirming nor the negotiating bank and the therefore there was no valid presentation of documents at Calcutta. The respondent further submitted that the letter of credit provided for payment at sight and that was not conditional upon receipt of the documents by UCO Bank in Calcutta but by its branch of Germany. Finally it is said that the letter of credit was issued in Germany, that the entire transaction took place in Germany, that the documents and witnesses were present in Germany and that, the balance of convenience was in favour of the suit being tried at Germany. 13. On the question of balance of convenience, the Learned Single Judge had, after considering the facts, held that it would not be inconvenient for the respondent to defend the suit from its Branch Office in Calcutta. On the other hand, the appellants would have to incur huge expense and that too in Foreign Exchange in the event the suit was prosecuted in Germany especially as the appellants did not have any office in Germany. The Division Bench did not consider this aspect at all. Speaking for ourselves, we see no reason to interfere with the conclusion arrived at by the Learned Single Judge. 14. On the role of UCO Bank and the validity of the presentation, the respondent has relied upon passages from Pagets Law of Banking as well as the decision of this Court in Federation Bank Limited vs. V.M. Jog Engineering Ltd. and ors. (2001) 1 SCC 663 to contend that there was no valid presentation by the appellant at the counters of UCO Bank, Calcutta. This has been countered by the appellant who has referred to Benjamins Sale of Goods. What the role of UCO Bank in fact was is a mixed question of law and fact. At present, since we have to determine the courts jurisdiction ex facie the plaint, we cannot proceed on the assumption that UCO Bank was not authorised to receive the documents or that the payment under the Letter of Credit was to be made, as far as the appellants are concerned, at Dusseldorf. Ultimately it will depend upon whether UCO Bank was acting for the Respondent or the appellants. All these matters will have to be decided on evidence and cannot be decided on an application for revocation of leave under Clause 12 of the Letters Patent. 15. The observations of Rankin CJ in Secretary of State vs. Gulab Rai Pali Ram (supra) correctly represents the law as to how the Court should approach an application for revocation of leave: "I do really protest against questions of difficulty and importance being dealt with by an application to revoke the leave under Cl. 12, Letters Patent and to take the plaint off the file. Normally it is well settled that the proper way to plead to the jurisdiction of the Court is to take the plea in the written statement and as a substantive part of the defence. Except in the clearest cases that should be the course". (p. 147) 16. In the circumstances, we are of the view that the learned Single Judge was justified in rejecting the respondents application for revocation of leave. The Division Bench should not have allowed the respondents appeal.
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10. We are of the opinion that the learned Judges erred in revoking leave under clause 12 of the Letters Patent in view of the clear assertions made in the plaint and the assertions in a plaint must be assumed to be true for the purpose of determining whether leave is liable to be revoked on a point ofThe Division Bench could have held that what was alleged to be a part of the cause of action did not form part of the cause of action at all. This the Division Bench did not do. It was not open to the Division Bench to come to a contrary factual conclusion in respect of any of these three grounds. The appeal is, therefore, liable to be allowed on this ground alone.On the question of balance of convenience, the Learned Single Judge had, after considering the facts, held that it would not be inconvenient for the respondent to defend the suit from its Branch Office in Calcutta. On the other hand, the appellants would have to incur huge expense and that too in Foreign Exchange in the event the suit was prosecuted in Germany especially as the appellants did not have any office in Germany. The Division Bench did not consider this aspect at all. Speaking for ourselves, we see no reason to interfere with the conclusion arrived at by the Learned Singlepresent, since we have to determine the courts jurisdiction ex facie the plaint, we cannot proceed on the assumption that UCO Bank was not authorised to receive the documents or that the payment under the Letter of Credit was to be made, as far as the appellants are concerned, at Dusseldorf. Ultimately it will depend upon whether UCO Bank was acting for the Respondent or the appellants. All these matters will have to be decided on evidence and cannot be decided on an application for revocation of leave under Clause 12 of the Letters Patent.In the circumstances, we are of the view that the learned Single Judge was justified in rejecting the respondents application for revocation of leave. The Division Bench should not have allowed the respondents appeal.
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New Gujarat Cotton Mills Limited Vs. Labour Appellate Tribunal & Others | apparent on the face of the record.12-a. Mr. Palkhiwala urged that the error apparent on the face of the record is an error which can be demonstrated without fresh evidence; but if that be the test it would in effect be converting this Court exercising jurisdiction to grant high prerogative writs, into a Court exercising appellate jurisdiction against decisions of Tribunals from which no appeals lie thereto. The test suggested by Counsel is in our judgment a fallacious test and we are unable to accept the same. Normally, this Court does not entertain applications for issue of high prerogative writs, when the decision depends upon proof or disproof of disputed questions of fact. In considering applications for a writ of certiorari, not only does the Court not allow fresh evidence to be led to challenge the conclusions of an inferior Tribunal but it normally accepts the conclusion of the Tribunal as conclusive. It is difficult then to appreciate how the test suggested by Mr. Palkhiwalla can be applied in ascertaining whether in the decision impugned there is an error apparent on the face of the record. In our view the conclusion of the Labour Appellate Tribunal on the question whether the New Company may be regarded as a successor of the Old Company must be accepted in this application.13. It was then urged by Mr. Palkhiwala that assuming that the New Company is the successor of the Old Company, an application under S. 42 (4) at the instance of the employees of the Old Company cannot lie unless the successor has chosen to re-employ the employees of the original company. This argument we have incidentally referred to in considering the nature of the jurisdiction which the Industrial Court exercised. We have pointed out that the scheme of the Bombay Industrial Relations Act render a successor liable even in the absence of a contract between the employees of the old undertaking, and its successor. We have also observed that the raison detre of a Labour Tribunal is to be found in the desire of the State to provide a forum which may, unhindered by legalistic considerations, attempt to secure harmony between the employer and the employee, with the ultimate object of securing an efficient working of industry by resolving disputes through the medium of arbitration and adjudication. That being the real object of labour legislation like the Bombay Industrial Relations Act jurisdiction to adjudicate upon a claim made by an employee of a transferor undertaking as against the transferee undertaking must be implicit. We therefore think that the second contention raised by Mr. Palkhiwala cannot be entertained. It was then urged by Mr. Palkhiwala that in this case even if it be held that the employees of the Old Company can file an application under S. 42 (4), the services of the applicants having been determined before the date on which the sale-deed was executed by the Liquidator the applicants have no right to proceed against the New Company. It was urged that right to file an application under S. 42 (4) against a successor postulates the existence of a subsisting contract between the old employer and the employee at the date of the transfer of the undertaking. But if regard be had to the definition of the word "employee" as inclusive of an employee whose employment has been terminated we are unable to see why the subsistence of an effective contract between the transferor undertaking and the employees is a prerequisite to a claim against the transferee undertaking under S. 42 (4).14. It may be pointed out that this argument was not urged in any of the three Courts below and was sought to be raised before us for the first time. In our view there is no substance in this plea and it must be rejected.15. Mr. Palkhiwala also invited our attention to S. 42 (4) before it was amended by the Bombay Act 33 of 1948. Counsel pointed out originally the Legislature had used the expression "his employer in S. 42 (4). Relying upon that form of enactment, it was contended that the Legislature had intended that before an employee can make an application, he had to establish that he was an employee of the employer against whom the application was made or intended to be made. It was urged that the Legislature intended by the use of the pronoun his that if there was no contract between the employee and the employer against whom an application was sought to be made under sub-s. (4) of S. 42, the Labour Court was incompetent to entertain the application.16. It is unnecessary for us to consider whether S. 42 (4) before it was amended by substitution of the definite article "the for the pronoun "his" supports the contention of the New Company. According to Mr. Palkhiwala, this amendment was made with a view to bring into line the provisions of the Act in view of another amendment made by incorporating the word "representative union" and by harmonising the use of the word employer" in the context in which it stood. It is true that by the same amendment the words "or representative union" were added so as to confer a right to make an application upon a representative union. But from that circumstance we are not justified in holding that the expression "the employer has the same meaning and connotation as the expression his employer" as originally used.17. It was finally urged that an application for reinstatement cannot lie at the instance of employees whose employment has been terminated. It is now too late in the day to raise that contention. The question has been finally adjudicated upon by the Federal Court in 51 Bom LR 894 : (AIR 1949 FC 111) (A), that the Labour Court or the Industrial Court is competent to reinstate dismissed or discharged employees; and that appears clear from the definition of the expression "employee" in S. 3 (13) of the Bombay Industrial Relations Act. | 0[ds]The employees in this case applied to the New Company fort but the New Company declined to accede to that request. The requirements of the Proviso to(4) are, therefore, fulfilled. A claim fornt must be deemed to fall within item (6) to Sch. III to the Act. The dispute raised by the employees expressly fell within item No. 6 in Sch. III and it was competent to the employees to make an application to the Labour Court desiring a change in respectfirst sight it may appear, that there is no contract of employment between the applicants and the New Company. The applicants were employees of the Old Company and it appears that there was termination of the employment either by a notice served upon them or by virtue of S. 172, Companies Act. The New Company before us also appears to be a new undertaking: it has been so registered under the Bombay Industrial Relations Act and it has been registered as a new company under the Companies Act. The New Company is admittedly a purchaser of the assets, goodwill and the immovable property which belonged to the Old Company including the. In our view, the jurisdiction of the Industrial Tribunal to pass orders in relation to industrial matters is derived not so much from considerations as to the existence of contractual rights and obligations, as on considerations of equity, security of service of workman, promotion of industrial peace and thereby the larger interest of the community. Merely because under the law of contracts under the ordinary jurisprudence of this country, a claim may not lie at the instance of the applicants to beor reinstated by the New Company, the claim made by the applicants cannot be regarded as inadmissible. It appears to have been settled by a large number of decisions of the Industrial and Labour Courts that the Industrial Law takes a different view about the duties and obligations of a successor in business and if a successor decides to run the same business which was carried on by his predecessor, the employees of the old concern are entitled to submit a dispute before the Industrial Tribunal regarding their rights and obligations in the business of the old concern, and those rights and obligations must be regarded as continuing and enforceable against the new management and not affected by the substitution of the new management for theis also implicit in Ss. 114 and 115 of the Bombay Industrial Relations Act that the rights and obligations of a management of an industrial undertaking are enforceable in proper cases against its successor. It appears from the terms of S. 18 (c) of the Industrial Disputes Act that a successor to an old undertaking is liable to meet certain obligations of its predecessors. In our view, therefore, the absence of a direct contractual relations between the applicants and the New Company is by itself not a ground for rejecting the claim made by theare unable to accept these submissions. It is true that there is no express reference in the habendum clause to a sale of the business of a going concern but on a reasonable reading of the document ofwe have no doubt that there was a conveyance of the property ordered to be sold by the Court and in respect of which tenders were invited. All the three items of property which were recited as properties in respect of which tenders were invited are the properties which ultimately have been sold and conveyed. We do not think that in this application we will be justified in allowing fresh evidence to be produced so as tothe proceedings at this late stage. Even if the factories of the Company had stopped working, it is difficult from that circumstance to arrive at a conclusion that the business of the Old Company had ceased. There is necessarily no direct connection between the stoppage of the factory and the stoppage of a business of the concern. For diverse reasons the factory may have closed but that does not lead to the conclusion that the business comes to an end. Again the goodwill of a business is inclusive of positive advantages such as carrying on the commercial undertaking at a particular place and in a particular name, and also its business connections, its business prestige, and several other intangible advantages which a business may acquire. Unless there is clear evidence to show that this goodwill which was intended to be sold and in fact sold by the Liquidator to the New Company, was nothing but a name, we will not be justified in holding that no real and substantialgoodwill of the OldEven if it be possible to take a view different from the one which has appealed to the Labour Appellate Tribunal on the interpretation of thewe do not think that in exercising jurisdiction under Art. 227 of the Constitution we have any powers to interfere with the conclusions of thatassuming that there is some error committed by the Tribunal, we do not think that the Tribunal has gone outside the bounds of its authority in interpreting theand in coming to a conclusion that what was conveyed was the business of a going concern and not merely the assets of a business which had closedin our judgment having regard to the findings of the Tribunal, we are unable to issue a writ of Certiorari. The limitations which inhere the exercise of jurisdiction under Art. 227 apply with greater force when this Courts powers under Art. 226 of the Constitution are invoked. If the Tribunal acts within the limitations of its authority, this Court will have no power to interfere with the conclusions recorded bywe do not think that the question whether the New Company is a successor of the Old Company is a jurisdictional question. The distinction between a collateral fact upon the proof of which the jurisdiction of a Tribunal depends and upon a fact which forms part of the issue to be decided by the Tribunal may be stated as follows: If the fact be collateral to the actual matter which the lower Court has to try, that Court cannot, by a wrong decision with regard to it, give itself jurisdiction which it would not otherwise possess. The lower Court must, indeed, decide as to the collateral fact, in the first instance but the superior Court may upon certiorari inquire into the correctness of the decision, and may quash the proceedings in the lower Court if such decision is erroneous or at any rate if there is no evidence to support it. On the other hand, if the fact in question be not collateral but a part of the very issue which the lower Court has to inquire into, certiorari will not be granted, although the lower Court may have arrived at an erroneous conclusion with regard to it.We have no doubt that the question whether the New Company are successors of the Old Company is a part of the issue which the Industrial Tribunal had to inquire into and decide and Certiorari cannot be granted merely to correct an error committed by thatthat be the test it would in effect be converting this Court exercising jurisdiction to grant high prerogative writs, into a Court exercising appellate jurisdiction against decisions of Tribunals from which no appeals lie thereto. The test suggested by Counsel is in our judgment a fallacious test and we are unable to accept the same. Normally, this Court does not entertain applications for issue of high prerogative writs, when the decision depends upon proof or disproof of disputed questions of fact. In considering applications for a writ of certiorari, not only does the Court not allow fresh evidence to be led to challenge the conclusions of an inferior Tribunal but it normally accepts the conclusion of the Tribunal as conclusive. It is difficult then to appreciate how the test suggested by Mr. Palkhiwalla can be applied in ascertaining whether in the decision impugned there is an error apparent on the face of the record. In our view the conclusion of the Labour Appellate Tribunal on the question whether the New Company may be regarded as a successor of the Old Company must be accepted in thisargument we have incidentally referred to in considering the nature of the jurisdiction which the Industrial Court exercised. We have pointed out that the scheme of the Bombay Industrial Relations Act render a successor liable even in the absence of a contract between the employees of the old undertaking, and its successor. We have also observed that the raison detre of a Labour Tribunal is to be found in the desire of the State to provide a forum which may, unhindered by legalistic considerations, attempt to secure harmony between the employer and the employee, with the ultimate object of securing an efficient working of industry by resolving disputes through the medium of arbitration and adjudication. That being the real object of labour legislation like the Bombay Industrial Relations Act jurisdiction to adjudicate upon a claim made by an employee of a transferor undertaking as against the transferee undertaking must be implicit. We therefore think that the second contention raised by Mr. Palkhiwala cannot beif regard be had to the definition of the word "employee" as inclusive of an employee whose employment has been terminated we are unable to see why the subsistence of an effective contract between the transferor undertaking and the employees is a prerequisite to a claim against the transferee undertaking under S. 42 (4).It may be pointed out that this argument was not urged in any of the three Courts below and was sought to be raised before us for the first time. In our view there is no substance in this plea and it must be rejected.It is unnecessary for us to consider whether S. 42 (4) before it was amended by substitution of the definite article "the for the pronoun "his" supports the contention of the Newis true that by the same amendment the words "or representative union" were added so as to confer a right to make an application upon a representative union. But from that circumstance we are not justified in holding that the expression "the employer has the same meaning and connotation as the expression his employer" as originallyquestion has been finally adjudicated upon by the Federal Court in 51 Bom LR 894 : (AIR 1949 FC 111) (A), that the Labour Court or the Industrial Court is competent to reinstate dismissed or discharged employees; and that appears clear from the definition of the expression "employee" in S. 3 (13) of the Bombay Industrial Relations Act. | 0 | 5,801 | 1,905 | ### Instruction:
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apparent on the face of the record.12-a. Mr. Palkhiwala urged that the error apparent on the face of the record is an error which can be demonstrated without fresh evidence; but if that be the test it would in effect be converting this Court exercising jurisdiction to grant high prerogative writs, into a Court exercising appellate jurisdiction against decisions of Tribunals from which no appeals lie thereto. The test suggested by Counsel is in our judgment a fallacious test and we are unable to accept the same. Normally, this Court does not entertain applications for issue of high prerogative writs, when the decision depends upon proof or disproof of disputed questions of fact. In considering applications for a writ of certiorari, not only does the Court not allow fresh evidence to be led to challenge the conclusions of an inferior Tribunal but it normally accepts the conclusion of the Tribunal as conclusive. It is difficult then to appreciate how the test suggested by Mr. Palkhiwalla can be applied in ascertaining whether in the decision impugned there is an error apparent on the face of the record. In our view the conclusion of the Labour Appellate Tribunal on the question whether the New Company may be regarded as a successor of the Old Company must be accepted in this application.13. It was then urged by Mr. Palkhiwala that assuming that the New Company is the successor of the Old Company, an application under S. 42 (4) at the instance of the employees of the Old Company cannot lie unless the successor has chosen to re-employ the employees of the original company. This argument we have incidentally referred to in considering the nature of the jurisdiction which the Industrial Court exercised. We have pointed out that the scheme of the Bombay Industrial Relations Act render a successor liable even in the absence of a contract between the employees of the old undertaking, and its successor. We have also observed that the raison detre of a Labour Tribunal is to be found in the desire of the State to provide a forum which may, unhindered by legalistic considerations, attempt to secure harmony between the employer and the employee, with the ultimate object of securing an efficient working of industry by resolving disputes through the medium of arbitration and adjudication. That being the real object of labour legislation like the Bombay Industrial Relations Act jurisdiction to adjudicate upon a claim made by an employee of a transferor undertaking as against the transferee undertaking must be implicit. We therefore think that the second contention raised by Mr. Palkhiwala cannot be entertained. It was then urged by Mr. Palkhiwala that in this case even if it be held that the employees of the Old Company can file an application under S. 42 (4), the services of the applicants having been determined before the date on which the sale-deed was executed by the Liquidator the applicants have no right to proceed against the New Company. It was urged that right to file an application under S. 42 (4) against a successor postulates the existence of a subsisting contract between the old employer and the employee at the date of the transfer of the undertaking. But if regard be had to the definition of the word "employee" as inclusive of an employee whose employment has been terminated we are unable to see why the subsistence of an effective contract between the transferor undertaking and the employees is a prerequisite to a claim against the transferee undertaking under S. 42 (4).14. It may be pointed out that this argument was not urged in any of the three Courts below and was sought to be raised before us for the first time. In our view there is no substance in this plea and it must be rejected.15. Mr. Palkhiwala also invited our attention to S. 42 (4) before it was amended by the Bombay Act 33 of 1948. Counsel pointed out originally the Legislature had used the expression "his employer in S. 42 (4). Relying upon that form of enactment, it was contended that the Legislature had intended that before an employee can make an application, he had to establish that he was an employee of the employer against whom the application was made or intended to be made. It was urged that the Legislature intended by the use of the pronoun his that if there was no contract between the employee and the employer against whom an application was sought to be made under sub-s. (4) of S. 42, the Labour Court was incompetent to entertain the application.16. It is unnecessary for us to consider whether S. 42 (4) before it was amended by substitution of the definite article "the for the pronoun "his" supports the contention of the New Company. According to Mr. Palkhiwala, this amendment was made with a view to bring into line the provisions of the Act in view of another amendment made by incorporating the word "representative union" and by harmonising the use of the word employer" in the context in which it stood. It is true that by the same amendment the words "or representative union" were added so as to confer a right to make an application upon a representative union. But from that circumstance we are not justified in holding that the expression "the employer has the same meaning and connotation as the expression his employer" as originally used.17. It was finally urged that an application for reinstatement cannot lie at the instance of employees whose employment has been terminated. It is now too late in the day to raise that contention. The question has been finally adjudicated upon by the Federal Court in 51 Bom LR 894 : (AIR 1949 FC 111) (A), that the Labour Court or the Industrial Court is competent to reinstate dismissed or discharged employees; and that appears clear from the definition of the expression "employee" in S. 3 (13) of the Bombay Industrial Relations Act.
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be possible to take a view different from the one which has appealed to the Labour Appellate Tribunal on the interpretation of thewe do not think that in exercising jurisdiction under Art. 227 of the Constitution we have any powers to interfere with the conclusions of thatassuming that there is some error committed by the Tribunal, we do not think that the Tribunal has gone outside the bounds of its authority in interpreting theand in coming to a conclusion that what was conveyed was the business of a going concern and not merely the assets of a business which had closedin our judgment having regard to the findings of the Tribunal, we are unable to issue a writ of Certiorari. The limitations which inhere the exercise of jurisdiction under Art. 227 apply with greater force when this Courts powers under Art. 226 of the Constitution are invoked. If the Tribunal acts within the limitations of its authority, this Court will have no power to interfere with the conclusions recorded bywe do not think that the question whether the New Company is a successor of the Old Company is a jurisdictional question. The distinction between a collateral fact upon the proof of which the jurisdiction of a Tribunal depends and upon a fact which forms part of the issue to be decided by the Tribunal may be stated as follows: If the fact be collateral to the actual matter which the lower Court has to try, that Court cannot, by a wrong decision with regard to it, give itself jurisdiction which it would not otherwise possess. The lower Court must, indeed, decide as to the collateral fact, in the first instance but the superior Court may upon certiorari inquire into the correctness of the decision, and may quash the proceedings in the lower Court if such decision is erroneous or at any rate if there is no evidence to support it. On the other hand, if the fact in question be not collateral but a part of the very issue which the lower Court has to inquire into, certiorari will not be granted, although the lower Court may have arrived at an erroneous conclusion with regard to it.We have no doubt that the question whether the New Company are successors of the Old Company is a part of the issue which the Industrial Tribunal had to inquire into and decide and Certiorari cannot be granted merely to correct an error committed by thatthat be the test it would in effect be converting this Court exercising jurisdiction to grant high prerogative writs, into a Court exercising appellate jurisdiction against decisions of Tribunals from which no appeals lie thereto. The test suggested by Counsel is in our judgment a fallacious test and we are unable to accept the same. Normally, this Court does not entertain applications for issue of high prerogative writs, when the decision depends upon proof or disproof of disputed questions of fact. In considering applications for a writ of certiorari, not only does the Court not allow fresh evidence to be led to challenge the conclusions of an inferior Tribunal but it normally accepts the conclusion of the Tribunal as conclusive. It is difficult then to appreciate how the test suggested by Mr. Palkhiwalla can be applied in ascertaining whether in the decision impugned there is an error apparent on the face of the record. In our view the conclusion of the Labour Appellate Tribunal on the question whether the New Company may be regarded as a successor of the Old Company must be accepted in thisargument we have incidentally referred to in considering the nature of the jurisdiction which the Industrial Court exercised. We have pointed out that the scheme of the Bombay Industrial Relations Act render a successor liable even in the absence of a contract between the employees of the old undertaking, and its successor. We have also observed that the raison detre of a Labour Tribunal is to be found in the desire of the State to provide a forum which may, unhindered by legalistic considerations, attempt to secure harmony between the employer and the employee, with the ultimate object of securing an efficient working of industry by resolving disputes through the medium of arbitration and adjudication. That being the real object of labour legislation like the Bombay Industrial Relations Act jurisdiction to adjudicate upon a claim made by an employee of a transferor undertaking as against the transferee undertaking must be implicit. We therefore think that the second contention raised by Mr. Palkhiwala cannot beif regard be had to the definition of the word "employee" as inclusive of an employee whose employment has been terminated we are unable to see why the subsistence of an effective contract between the transferor undertaking and the employees is a prerequisite to a claim against the transferee undertaking under S. 42 (4).It may be pointed out that this argument was not urged in any of the three Courts below and was sought to be raised before us for the first time. In our view there is no substance in this plea and it must be rejected.It is unnecessary for us to consider whether S. 42 (4) before it was amended by substitution of the definite article "the for the pronoun "his" supports the contention of the Newis true that by the same amendment the words "or representative union" were added so as to confer a right to make an application upon a representative union. But from that circumstance we are not justified in holding that the expression "the employer has the same meaning and connotation as the expression his employer" as originallyquestion has been finally adjudicated upon by the Federal Court in 51 Bom LR 894 : (AIR 1949 FC 111) (A), that the Labour Court or the Industrial Court is competent to reinstate dismissed or discharged employees; and that appears clear from the definition of the expression "employee" in S. 3 (13) of the Bombay Industrial Relations Act.
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SATYA DEV BHAGAUR & ORS Vs. THE STATE OF RAJASTHAN AND ORS | could have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such decision has been taken. Unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision cannot be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the context of illegality and unconstitutionality, courts should avoid embarking on uncharted ocean of public policy. 18. A three-Judge bench of this Court in Sher Singh and Others vs. Union of India and Others (1995) 6 SCC 515 has observed thus: As a matter of fact the courts would be slow in interfering with matters of government policy except where it is shown that the decision is unfair, mala fide or contrary to any statutory directions. 19. When Rule 19 is read with sub-clause (ii) of Clause 7 of the advertisement, the policy and object of the State of Rajasthan would be clear. Sub-clause (ii) of Clause 7 of the advertisement enlists the authorities who are competent to issue experience certificate for contractual employees. The list would reveal that most of the competent authorities are the authorities who are heads of the institution like Government Medical College, Government Dental College, Director, Public Health, All Chief Medical and Health Officer of the State, All Primary Medical Officers, etc. Insofar as the NHM/AIDS is concerned, the competent authority is mentioned as Project Director, NHM/AIDS. We find that reading Project Director, NHM/AIDS to be a Project Director of NHM/NRHM anywhere in the country would be reading the said words without context. When sub-clause (ii) of Clause (7) of the advertisement mentions all other authorities who are the heads of the various establishments in the State of Rajasthan, the term Project Director, NHM will have to be construed as Project Director, NHM within the State of Rajasthan. 20. Though the impugned order does not consider this aspect in detail, it will be apposite to refer to the observation made by the Division Bench of the High Court of Rajasthan in the case of Jagdish Prasad and Others vs. State of Rajasthan and Ors. (D.B. Civil Writ Petition No. 12942/2015, dated 09.02.2016): From perusal of the record made available, the Government of Rajasthan has conducted several training programmes for the persons working even on contractual basis and under different schemes controlled by the Government of Rajasthan and Medi Care Relief Society. The training programmes mainly pertain to the peculiar working pattern in the rural areas of the State of Rajasthan including tribal and arid zones. It is also pertinent to note that the participation in such trainings is mandatory and non-joining of the same may result into non--renewal of service contract. The persons working with Government of Rajasthan and Medi Care Relief Society with experience similar to the work of Nurse Grade-II are posted at different hospitals and other institutions affiliated with the health projects and as such these persons are having a special knowledge of working in the State. A person having such knowledge certainly forms a class different than the persons not having such experience of working in the State. It is also pertinent to note that the benefit extended is only a little weightage on basis of the length of service with experience of working in Rajasthan and not the eligibility. A person having qualification eligibility is entitled to face the process of recruitment irrespective of having any experience or not. The experience gained in other States cannot be compared with the working in the State of Rajasthan as every State is having its own problems and issues and the persons trained to meet such circumstances stand on different pedestal. 21. It could thus clearly be seen that the Division Bench in the case of Jagdish Prasad (Supra) after considering the record, has come to the finding that the Government of Rajasthan has conducted several training programmes for the persons working with it on contractual basis, as well as under different schemes. The training programmes mainly pertain to the peculiar working pattern in the rural areas of the State of Rajasthan including tribal and arid zones. The Division Bench has further come to a finding that participation in such a training is mandatory and non-joining of the same would result in non--renewal of service contracts. It has been held that persons having special knowledge in working in the State of Rajasthan form a class different than the persons not having such experience of working in the State. It was found that the benefit extended by the State policy was only that of giving a little more weightage on the basis of experience and all the candidates were required to undergo the rigor of selection process. The Division Bench has clearly held that the experienced candidates in other States cannot be compared with the candidates working in the State of Rajasthan, as every State has its own problems and issues and the persons trained to meet such circumstances, stand on a different pedestal. 22. We are in complete agreement with the aforesaid observations of the Division Bench. We find that the policy of the State of Rajasthan to restrict the benefit of bonus marks only to such employees who have worked under different organizations in the State of Rajasthan and to employees working under the NHM/NRHM schemes in the State of Rajasthan, cannot be said to be arbitrary. 23. It is further to be noted that this Court in the case of Sachivalaya Dainik Vetan Bhogi Karamchari Union, Jaipur vs. State of Rajasthan and Others (2017) 11 SCC 421, has upheld the policy of the State of Rajasthan, for giving weightage for the services rendered by the employees, where services were used by the State either temporarily or on ad hoc basis. | 0[ds]15. From the material placed on record, it appears that the policy of the State of Rajasthan is that while selecting Nurse Compounder Junior Grade, the bonus marks are to be given to such employees who have done similar work under the State Government and under the various schemes. The question thus, would be whether such bonus marks would also be available to the contractual employees working under the NHM/NRHM schemes in other States.16. It is trite that the Courts would be slow in interfering in the policy matters, unless the policy is found to be palpably discriminatory and arbitrary. This court would not interfere with the policy decision when a State is in a position to point out that there is intelligible differentia in application of policy and that such intelligible differentia has a nexus with the object sought to be achieved.17. This Court in the case of Krishnan Kakkanth vs. Government of Kerala and others (1997) 9 SCC 495 has observed thus:36. To ascertain unreasonableness and arbitrariness in the context of Article 14 of the Constitution, it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of the State Government. It is immaterial whether a better or more comprehensive policy decision could have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such decision has been taken. Unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision cannot be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the context of illegality and unconstitutionality, courts should avoid embarking on uncharted ocean of public policy.19. When Rule 19 is read with sub-clause (ii) of Clause 7 of the advertisement, the policy and object of the State of Rajasthan would be clear. Sub-clause (ii) of Clause 7 of the advertisement enlists the authorities who are competent to issue experience certificate for contractual employees. The list would reveal that most of the competent authorities are the authorities who are heads of the institution like Government Medical College, Government Dental College, Director, Public Health, All Chief Medical and Health Officer of the State, All Primary Medical Officers, etc. Insofar as the NHM/AIDS is concerned, the competent authority is mentioned as Project Director, NHM/AIDS. We find that reading Project Director, NHM/AIDS to be a Project Director of NHM/NRHM anywhere in the country would be reading the said words without context. When sub-clause (ii) of Clause (7) of the advertisement mentions all other authorities who are the heads of the various establishments in the State of Rajasthan, the term Project Director, NHM will have to be construed as Project Director, NHM within the State of Rajasthan.20. Though the impugned order does not consider this aspect in detail, it will be apposite to refer to the observation made by the Division Bench of the High Court of Rajasthan in the case of Jagdish Prasad and Others vs. State of Rajasthan and Ors. (D.B. Civil Writ Petition No. 12942/2015, dated 09.02.2016):From perusal of the record made available, the Government of Rajasthan has conducted several training programmes for the persons working even on contractual basis and under different schemes controlled by the Government of Rajasthan and Medi Care Relief Society. The training programmes mainly pertain to the peculiar working pattern in the rural areas of the State of Rajasthan including tribal and arid zones. It is also pertinent to note that the participation in such trainings is mandatory and non-joining of the same may result into non--renewal of service contract. The persons working with Government of Rajasthan and Medi Care Relief Society with experience similar to the work of Nurse Grade-II are posted at different hospitals and other institutions affiliated with the health projects and as such these persons are having a special knowledge of working in the State. A person having such knowledge certainly forms a class different than the persons not having such experience of working in the State. It is also pertinent to note that the benefit extended is only a little weightage on basis of the length of service with experience of working in Rajasthan and not the eligibility. A person having qualification eligibility is entitled to face the process of recruitment irrespective of having any experience or not. The experience gained in other States cannot be compared with the working in the State of Rajasthan as every State is having its own problems and issues and the persons trained to meet such circumstances stand on different pedestal.21. It could thus clearly be seen that the Division Bench in the case of Jagdish Prasad (Supra) after considering the record, has come to the finding that the Government of Rajasthan has conducted several training programmes for the persons working with it on contractual basis, as well as under different schemes. The training programmes mainly pertain to the peculiar working pattern in the rural areas of the State of Rajasthan including tribal and arid zones. The Division Bench has further come to a finding that participation in such a training is mandatory and non-joining of the same would result in non--renewal of service contracts. It has been held that persons having special knowledge in working in the State of Rajasthan form a class different than the persons not having such experience of working in the State. It was found that the benefit extended by the State policy was only that of giving a little more weightage on the basis of experience and all the candidates were required to undergo the rigor of selection process. The Division Bench has clearly held that the experienced candidates in other States cannot be compared with the candidates working in the State of Rajasthan, as every State has its own problems and issues and the persons trained to meet such circumstances, stand on a different pedestal.22. We are in complete agreement with the aforesaid observations of the Division Bench. We find that the policy of the State of Rajasthan to restrict the benefit of bonus marks only to such employees who have worked under different organizations in the State of Rajasthan and to employees working under the NHM/NRHM schemes in the State of Rajasthan, cannot be said to be arbitrary.23. It is further to be noted that this Court in the case of Sachivalaya Dainik Vetan Bhogi Karamchari Union, Jaipur vs. State of Rajasthan and Others (2017) 11 SCC 421, has upheld the policy of the State of Rajasthan, for giving weightage for the services rendered by the employees, where services were used by the State either temporarily or on ad hoc basis. | 0 | 2,816 | 1,244 | ### Instruction:
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could have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such decision has been taken. Unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision cannot be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the context of illegality and unconstitutionality, courts should avoid embarking on uncharted ocean of public policy. 18. A three-Judge bench of this Court in Sher Singh and Others vs. Union of India and Others (1995) 6 SCC 515 has observed thus: As a matter of fact the courts would be slow in interfering with matters of government policy except where it is shown that the decision is unfair, mala fide or contrary to any statutory directions. 19. When Rule 19 is read with sub-clause (ii) of Clause 7 of the advertisement, the policy and object of the State of Rajasthan would be clear. Sub-clause (ii) of Clause 7 of the advertisement enlists the authorities who are competent to issue experience certificate for contractual employees. The list would reveal that most of the competent authorities are the authorities who are heads of the institution like Government Medical College, Government Dental College, Director, Public Health, All Chief Medical and Health Officer of the State, All Primary Medical Officers, etc. Insofar as the NHM/AIDS is concerned, the competent authority is mentioned as Project Director, NHM/AIDS. We find that reading Project Director, NHM/AIDS to be a Project Director of NHM/NRHM anywhere in the country would be reading the said words without context. When sub-clause (ii) of Clause (7) of the advertisement mentions all other authorities who are the heads of the various establishments in the State of Rajasthan, the term Project Director, NHM will have to be construed as Project Director, NHM within the State of Rajasthan. 20. Though the impugned order does not consider this aspect in detail, it will be apposite to refer to the observation made by the Division Bench of the High Court of Rajasthan in the case of Jagdish Prasad and Others vs. State of Rajasthan and Ors. (D.B. Civil Writ Petition No. 12942/2015, dated 09.02.2016): From perusal of the record made available, the Government of Rajasthan has conducted several training programmes for the persons working even on contractual basis and under different schemes controlled by the Government of Rajasthan and Medi Care Relief Society. The training programmes mainly pertain to the peculiar working pattern in the rural areas of the State of Rajasthan including tribal and arid zones. It is also pertinent to note that the participation in such trainings is mandatory and non-joining of the same may result into non--renewal of service contract. The persons working with Government of Rajasthan and Medi Care Relief Society with experience similar to the work of Nurse Grade-II are posted at different hospitals and other institutions affiliated with the health projects and as such these persons are having a special knowledge of working in the State. A person having such knowledge certainly forms a class different than the persons not having such experience of working in the State. It is also pertinent to note that the benefit extended is only a little weightage on basis of the length of service with experience of working in Rajasthan and not the eligibility. A person having qualification eligibility is entitled to face the process of recruitment irrespective of having any experience or not. The experience gained in other States cannot be compared with the working in the State of Rajasthan as every State is having its own problems and issues and the persons trained to meet such circumstances stand on different pedestal. 21. It could thus clearly be seen that the Division Bench in the case of Jagdish Prasad (Supra) after considering the record, has come to the finding that the Government of Rajasthan has conducted several training programmes for the persons working with it on contractual basis, as well as under different schemes. The training programmes mainly pertain to the peculiar working pattern in the rural areas of the State of Rajasthan including tribal and arid zones. The Division Bench has further come to a finding that participation in such a training is mandatory and non-joining of the same would result in non--renewal of service contracts. It has been held that persons having special knowledge in working in the State of Rajasthan form a class different than the persons not having such experience of working in the State. It was found that the benefit extended by the State policy was only that of giving a little more weightage on the basis of experience and all the candidates were required to undergo the rigor of selection process. The Division Bench has clearly held that the experienced candidates in other States cannot be compared with the candidates working in the State of Rajasthan, as every State has its own problems and issues and the persons trained to meet such circumstances, stand on a different pedestal. 22. We are in complete agreement with the aforesaid observations of the Division Bench. We find that the policy of the State of Rajasthan to restrict the benefit of bonus marks only to such employees who have worked under different organizations in the State of Rajasthan and to employees working under the NHM/NRHM schemes in the State of Rajasthan, cannot be said to be arbitrary. 23. It is further to be noted that this Court in the case of Sachivalaya Dainik Vetan Bhogi Karamchari Union, Jaipur vs. State of Rajasthan and Others (2017) 11 SCC 421, has upheld the policy of the State of Rajasthan, for giving weightage for the services rendered by the employees, where services were used by the State either temporarily or on ad hoc basis.
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case of Krishnan Kakkanth vs. Government of Kerala and others (1997) 9 SCC 495 has observed thus:36. To ascertain unreasonableness and arbitrariness in the context of Article 14 of the Constitution, it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of the State Government. It is immaterial whether a better or more comprehensive policy decision could have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such decision has been taken. Unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision cannot be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the context of illegality and unconstitutionality, courts should avoid embarking on uncharted ocean of public policy.19. When Rule 19 is read with sub-clause (ii) of Clause 7 of the advertisement, the policy and object of the State of Rajasthan would be clear. Sub-clause (ii) of Clause 7 of the advertisement enlists the authorities who are competent to issue experience certificate for contractual employees. The list would reveal that most of the competent authorities are the authorities who are heads of the institution like Government Medical College, Government Dental College, Director, Public Health, All Chief Medical and Health Officer of the State, All Primary Medical Officers, etc. Insofar as the NHM/AIDS is concerned, the competent authority is mentioned as Project Director, NHM/AIDS. We find that reading Project Director, NHM/AIDS to be a Project Director of NHM/NRHM anywhere in the country would be reading the said words without context. When sub-clause (ii) of Clause (7) of the advertisement mentions all other authorities who are the heads of the various establishments in the State of Rajasthan, the term Project Director, NHM will have to be construed as Project Director, NHM within the State of Rajasthan.20. Though the impugned order does not consider this aspect in detail, it will be apposite to refer to the observation made by the Division Bench of the High Court of Rajasthan in the case of Jagdish Prasad and Others vs. State of Rajasthan and Ors. (D.B. Civil Writ Petition No. 12942/2015, dated 09.02.2016):From perusal of the record made available, the Government of Rajasthan has conducted several training programmes for the persons working even on contractual basis and under different schemes controlled by the Government of Rajasthan and Medi Care Relief Society. The training programmes mainly pertain to the peculiar working pattern in the rural areas of the State of Rajasthan including tribal and arid zones. It is also pertinent to note that the participation in such trainings is mandatory and non-joining of the same may result into non--renewal of service contract. The persons working with Government of Rajasthan and Medi Care Relief Society with experience similar to the work of Nurse Grade-II are posted at different hospitals and other institutions affiliated with the health projects and as such these persons are having a special knowledge of working in the State. A person having such knowledge certainly forms a class different than the persons not having such experience of working in the State. It is also pertinent to note that the benefit extended is only a little weightage on basis of the length of service with experience of working in Rajasthan and not the eligibility. A person having qualification eligibility is entitled to face the process of recruitment irrespective of having any experience or not. The experience gained in other States cannot be compared with the working in the State of Rajasthan as every State is having its own problems and issues and the persons trained to meet such circumstances stand on different pedestal.21. It could thus clearly be seen that the Division Bench in the case of Jagdish Prasad (Supra) after considering the record, has come to the finding that the Government of Rajasthan has conducted several training programmes for the persons working with it on contractual basis, as well as under different schemes. The training programmes mainly pertain to the peculiar working pattern in the rural areas of the State of Rajasthan including tribal and arid zones. The Division Bench has further come to a finding that participation in such a training is mandatory and non-joining of the same would result in non--renewal of service contracts. It has been held that persons having special knowledge in working in the State of Rajasthan form a class different than the persons not having such experience of working in the State. It was found that the benefit extended by the State policy was only that of giving a little more weightage on the basis of experience and all the candidates were required to undergo the rigor of selection process. The Division Bench has clearly held that the experienced candidates in other States cannot be compared with the candidates working in the State of Rajasthan, as every State has its own problems and issues and the persons trained to meet such circumstances, stand on a different pedestal.22. We are in complete agreement with the aforesaid observations of the Division Bench. We find that the policy of the State of Rajasthan to restrict the benefit of bonus marks only to such employees who have worked under different organizations in the State of Rajasthan and to employees working under the NHM/NRHM schemes in the State of Rajasthan, cannot be said to be arbitrary.23. It is further to be noted that this Court in the case of Sachivalaya Dainik Vetan Bhogi Karamchari Union, Jaipur vs. State of Rajasthan and Others (2017) 11 SCC 421, has upheld the policy of the State of Rajasthan, for giving weightage for the services rendered by the employees, where services were used by the State either temporarily or on ad hoc basis.
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Amalgamated Coalfields Ltd. & Anr Vs. Janapada Sabha Chhindwara | origin of the tax. When the first notification was issued on the 16th December, 1935 it authorised and sanctioned the imposition by the Independent Mining Local Board at Chhindwara in the Chhindwara District "of a tax at 3 pies per ton on coal, coal dust or coke, manufactured at the mines, sold for export by rail or sold otherwise than for export by rail, within the jurisdiction of the Independent Mining Local Board." This tax was recovered by the Board and thereafter by the respondent in respect of coal whether sold inside the district of Chhindwara or sold outside the district of Chhindwara or even outside the State of Madhya Pradesh. In other words, the total coal produced by each mining lease-holder substantially came to be taxed. But after the Constitution came into force, doubts arose as to whether Art. 286 of the Constitution did not preclude the respondent from recovering tax in respect of coal exported out of the State of Madhya Pradesh, and in view of the advice given to the respondent by the Government of Madhya Pradesh, the respondent did not collect the tax in respect of coal which was exported by rail outside the State of Madhya Pradesh from about 1952. The respondent wanted to consult legal opinion on this point, but the State Government refused permission to the respondent to incur expenditure in that behalf. Subsequently, however, this question came to be decided by the High Court of Madhya Pradesh in a writ petition filed by M/s. Newton Chickli Collieries (Pvt.) Ltd. (No. 265 of 1957). The High Court held that the tax levied by the Janapada Sabha under S. 51 of the Act did not amount to a sales tax nor to an excise duty, and so, the respondent thought that it could levy tax even on coal exported by rail outside the State of Madhya Pradesh. In fact, after this judgment was pronounced by the High Court on August 6, 1958, the Provincial Government withdrew its instructions to the respondent not to levy tax on exported coal. That is how the respondent has issued notices against the appellants in respect of coal exported by rail out of the State of Madhya Pradesh in regard to the years for which assessment has already been levied against the appellants for the coal not so exported, and the contention of the appellants is that this reopening of the assessment is not permissible under the Rules.33. This contention appears to be well founded. We have already seen the scheme of the Rules and we have noticed that R. 10 provides that if no objection is filed, the Chairmans assessment shall be final and if an objection is received, the decision of the Mining Board would be final.In other words, the scheme clearly provides that at the end of each six monthly period, the tax has to be assessed notices to be issued to the assessee, his objections to be considered and the tax to be ultimately determined in the light of the decision on the said objections; and under R. 10, the two decisions specified therein become final. It may be that the Rules do not prescribe any limitation within which these steps have to be taken by the respondent for each period, but that is another matter. In view of the provisions of R. 10 it is difficult to hold that the respondent is entitled to reopen assessments already made and rendered final under the said Rule. There is no other provision for reopening assessment as we have under Ss. 34 and 35 of the Indian Income-tax Act, and so, the respondent is not justified in issuing notices for the years which are covered by assessment orders already passed. The finality provided for by R. 10 will work as much against the respondent as against the assessee. 34. In support of the appeals, another argument was sought to be raised against the increase of the rates. It was urged that the tax is in the nature of an excise duty or a sales-tax and, therefore, any increase in the said tax beyond the limit of 3 pies - the continuance of which has been saved by the provisions of Art. 143 of the Government of India Act, 1935 and Art. 277 of the Constitution - will be invalid. This argument is based on the terms used in the notification of the 16th December, 1935. Since coal is described as manufactured at the mines, the argument is that it is in the nature of an excise duty and since the notification also refers to coal sold for export by rail or sold otherwise than for export by rail, it is argued that it is a sales-tax. On the other hand, the respondent contends that it is neither a sales-tax nor an excise duty and as such, the rate can be increased subject, of course, to the requirements of S. 51 (2) of the Act. It appears that by notification issued on September 6, 1943, the preamble of the Rules was modified by substituting for the words "coal, coal dust or coke" by "coal and dust coal" and by deleting the words "manufactured at the mines". Curiously enough these amendments have not been made in the original notification itself. We have already noticed that this latter notification deleted R. 3. Some arguments were urged before us by learned counsel on both sides as to the effect of this notification which modified the preamble to the Rules. We do not, however, think it necessary to consider these arguments in the present appeals because of our conclusion that the impugned notices levying the tax @ 9 pies per ton are invalid for two reasons : the increase in the rates has not been sanctioned by the State Government under S. 51 (2) and an attempt to recover at the increased rate the tax for the years already covered by assessment orders passed in that behalf, is bared by R. 10. | 1[ds]18. The question in the present appeals, however, is somewhat different. The notices which are challenged by the appellants in the present proceedings are in respect of the tax levied for a period different from the period covered by the notices issued on the 23rd August, 1958 which were the subject-matter of the earlier writ proceedings Amalgamated Coalfields Ltd., 1962-1 SCR 1 : (AIR 1961 SC 964 ).Where the liability of a tax for a particular year is considered and decided, does the decision for that particular year operate as res judicata in respect of the liability for a subsequent year ?In a sense, the liability to pay tax from year to year is a separate and distinct liability; it is based on a different cause of action from year to year, and if any points of fact or law are considered in determining the liability for a given year, they can generally be deemed to have been considered and decided in a collateral and incidental way. The trend of the recent English decisions on the whole appears to be, in the words of Lord Radcliffe, "that it is more in the public interest that tax and rate assessment should not be artificially encumbered with estoppels (I am not speaking, of course, of the effect of legal decisions establishing the law, which is quite a different matter), even through in the result some expectations may be frustrated and some time wasted." (Vide Society of Medical Officers of Health v. Hope, 1960 AC 551 at p. 563). The basic for this view is that generally, questions of liability to pay tax are determined by Tribunals with limited jurisdiction and so, it would not be inappropriate to assume that if they decide any other questions incidental to the determination of the liability for the specific period, the decisions of those incidental questions need not create a bar of res judicata while similar questions of liability for subsequent years are being examined23. In considering this question, it may be necessary to distinguish between decision on questions of law which directly and substantially arise in any dispute about the liability for a particular year, and questions of law which arise incidentally or in a collateral manner, as Lord Radcliffe himself has observed in the case of the Society of Medical Officers of Health, 1960 AC 155 that the effect of legal decisions establishing the law would be a different matter. If, for instance, the validity of a taxing statute is impeached by an assessee who is called upon to pay a tax for a particular year and the matter is taken to the High Court or brought before this Court and it is held that the taxing statute is valid, it may not be easy to hold that the decision on this basic and material issue would not operate as res judicata against the assessee for a subsequent year. That, however, is a matter on which it is unnecessary for us to pronounce a definite opinion in the present case. In this connection, it would be relevant to add that even if a direct decision of this Court on a point of law does not operate as res judicata in a dispute for a subsequent year, such a decision would, under Art. 141, have a binding effect not only on the parties to it, but also on all counts in India as a precedent in which the law is declared by this Court. The question about the applicability of res judicata to such a decision would thus be a matter of merely academic significanceIt is significant that the attack against the validity of the notices in the present proceedings is based on grounds different and distinct from the grounds raised on the earlier occasion. It is not as if the same ground which was urged on the earlier occasion is placed before the Court in another form. The grounds now urged are entirely distinct and so, the decision of the High Court can be upheld only if the principle of constructive res judicata can be said to apply to writ petitions filed under Art. 32 or Art. 226. In our opinion, constructive res judicata which is a special and artificial form of res judicata enacted by S. 11 of the Civil Procedure Code should not generally be applied to writ petitions filed under Art. 32 or Art. 226. We would be reluctant to apply this principle to the present appeals all the more because we are dealing with cases where the impugned tax liability is for different years. In dismissing the appellants petitions on the ground of res judicata, the High Court has no doubt referred to Art. 141 under which the law declared by this Court is binding on all Courts within the territory of India. But when we are considering the question as to whether any law has been declared by this Court by implication, such implied declaration, though binding, must be held to be subject to revision by this Court on a proper occasion where the point in question is directly and expressly raised by any party before this Court. Therefore, we are inclined to hold that the appellants cannot be precluded from raising the new contentions on which their challenge against the validity of the notices is basedIn the present case, we are not satisfied that this decision can assist the appellants at all, because the nature of the statutory provisions and the Rules framed under the Act in the present appeals is entirely different29. We have already noticed that S. 79 (1) (xv) authorised the making of a rule as to the maximum amounts or rates at which any of the articles can be taxed.This was introduced by an amendment made in 1933 by C. P. Act VII of 1933, and so, the argument is that R. 3 which provides that the tax shall be levied @ 3 pies per ton must be deemed to provide for the maximum rate which can be levied and that is 3 pies per ton and no more. This argument is no doubt well founded, because R. 3 will have to be read in the light of the power conferred on the local Government by S. 79 (1) (xv) and that would mean that the rate of 3 pies per ton has been prescribed by the Rule as the maximum rate permissible. But this argument ignores the fact that this Rule has been subsequently deleted by a notification on September 6, 1943 published in the Government Gazette on September 10, 1943. When this notification was cited before us the appellants conceded that the argument based on the construction of R. 3 was not available to them. Therefore, the contention that R. 3 prohibits the levy at a rate higher than 3 pies cannot succeed since the Rule itself has been subsequently deleted, and was not a part of the Rules at the relevant time when the impugned notices were issuedSection 51 (1) authorises the imposition of the tax, provided of course, the procedure prescribed by it and the requirements laid down by it are satisfied, sub-s. (2) then lays down that the first imposition of any tax shall be subject to the previous sanction of the Provincial Government. The appellants contend that in the context, the "first imposition" means not only the first imposition in the sense of an initial imposition, but it includes every fresh imposition levied at an increased rate. On the other hand, the respondent Sabha contends that the first imposition means only the initial levy or impost and cannot take in subsequent imposts or levies. In this connection, it is relevant to remember that sub-sec. (2) was added by the same Amending Act by which S. 79 (1) (xv) was amended, and so, it would not be unreasonable to assume that when the legislature gave power to the local Government to prescribe by rules the maximum rates permissible to be levied; it introduced sub-s. (2) in S. 51 because it was thought necessary that whenever the rates were changed, the imposition of the tax at the increased rates should receive the previous sanction of the Government. If the respondents construction is accepted, it would mean that the respondent should obtain the previous sanction of the Government at the initial levy and thereafter may go on increasing the rate of the levy to any extent without securing the sanction of the Government in that behalf. Now that Rule 3 has been deleted and no maximum has been or can be prescribed by the Rules, it would be unreasonable to hold that the respondent is given an unfettered and unguided authority to levy the impost in question at any rate it likes. Since no ceiling has been placed by the Rules in that behalf, it would, we think, be fair to hold that if the rates are increased and levy is sought to be imposed on the altered rates the imposition of the levy at these altered rates should be deemed to be included in the expression "first imposition" under S. 51 (2). We are, therefore, inclined to accept the appellants construction of S. 51 (2). That being so, it is necessary to enquire whether the imposition of the tax at the rate of 9 pies has received the previous sanction of the local GovernmentTwo of these notifications were then produced before us by the respondent, and they supported the contention made by Mr. Choudhury. Therefore, the argument that the imposition @ 9 pies per ton has received the sanction of the Government must fail, and so, the impugned notices which seek to recover the tax from the appellants @ 9 pies per ton must be held to be invalid. The respondent is entitled to levy tax only @ 3 pies per ton because that levy has received the sanction of the Government, but if the respondent intends to increase the rate of the said tax, it must follow the procedure prescribed by S. 51 (2), provided of course, it is open to the respondent to increase the said taxThe genesis of the tax is somewhat interesting. It appears that roads were constructed by the Independent Mining Local Board at enormous cost at the request of the Mining interests and even debt had to be incurred by the Board for completing the work of the construction of roads. Since the mining companies received substantial benefit from these roads, the Legislature thought of levying a tax on coal, and that is the origin of the tax. When the first notification was issued on the 16th December, 1935 it authorised and sanctioned the imposition by the Independent Mining Local Board at Chhindwara in the Chhindwara District "of a tax at 3 pies per ton on coal, coal dust or coke, manufactured at the mines, sold for export by rail or sold otherwise than for export by rail, within the jurisdiction of the Independent Mining Local Board." This tax was recovered by the Board and thereafter by the respondent in respect of coal whether sold inside the district of Chhindwara or sold outside the district of Chhindwara or even outside the State of Madhya Pradesh. In other words, the total coal produced by each mining lease-holder substantially came to be taxed. But after the Constitution came into force, doubts arose as to whether Art. 286 of the Constitution did not preclude the respondent from recovering tax in respect of coal exported out of the State of Madhya Pradesh, and in view of the advice given to the respondent by the Government of Madhya Pradesh, the respondent did not collect the tax in respect of coal which was exported by rail outside the State of Madhya Pradesh from about 1952. The respondent wanted to consult legal opinion on this point, but the State Government refused permission to the respondent to incur expenditure in that behalf. Subsequently, however, this question came to be decided by the High Court of Madhya Pradesh in a writ petition filed by M/s. Newton Chickli Collieries (Pvt.) Ltd. (No. 265 of 1957). The High Court held that the tax levied by the Janapada Sabha under S. 51 of the Act did not amount to a sales tax nor to an excise duty, and so, the respondent thought that it could levy tax even on coal exported by rail outside the State of Madhya Pradesh. In fact, after this judgment was pronounced by the High Court on August 6, 1958, the Provincial Government withdrew its instructions to the respondent not to levy tax on exported coal33. This contention appears to be well founded. We have already seen the scheme of the Rules and we have noticed that R. 10 provides that if no objection is filed, the Chairmans assessment shall be final and if an objection is received, the decision of the Mining Board would be final.In other words, the scheme clearly provides that at the end of each six monthly period, the tax has to be assessed notices to be issued to the assessee, his objections to be considered and the tax to be ultimately determined in the light of the decision on the said objections; and under R. 10, the two decisions specified therein become final. It may be that the Rules do not prescribe any limitation within which these steps have to be taken by the respondent for each period, but that is another matter. In view of the provisions of R. 10 it is difficult to hold that the respondent is entitled to reopen assessments already made and rendered final under the said Rule. There is no other provision for reopening assessment as we have under Ss. 34 and 35 of the Indian Income-tax Act, and so, the respondent is not justified in issuing notices for the years which are covered by assessment orders already passed. The finality provided for by R. 10 will work as much against the respondent as against the assesseeIt appears that by notification issued on September 6, 1943, the preamble of the Rules was modified by substituting for the words "coal, coal dust or coke" by "coal and dust coal" and by deleting the words "manufactured at the mines". Curiously enough these amendments have not been made in the original notification itself. We have already noticed that this latter notification deleted R. 3. Some arguments were urged before us by learned counsel on both sides as to the effect of this notification which modified the preamble to the Rules. We do not, however, think it necessary to consider these arguments in the present appeals because of our conclusion that the impugned notices levying the tax @ 9 pies per ton are invalid for two reasons : the increase in the rates has not been sanctioned by the State Government under S. 51 (2) and an attempt to recover at the increased rate the tax for the years already covered by assessment orders passed in that behalf, is bared by R. 10. | 1 | 9,083 | 2,744 | ### 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:
origin of the tax. When the first notification was issued on the 16th December, 1935 it authorised and sanctioned the imposition by the Independent Mining Local Board at Chhindwara in the Chhindwara District "of a tax at 3 pies per ton on coal, coal dust or coke, manufactured at the mines, sold for export by rail or sold otherwise than for export by rail, within the jurisdiction of the Independent Mining Local Board." This tax was recovered by the Board and thereafter by the respondent in respect of coal whether sold inside the district of Chhindwara or sold outside the district of Chhindwara or even outside the State of Madhya Pradesh. In other words, the total coal produced by each mining lease-holder substantially came to be taxed. But after the Constitution came into force, doubts arose as to whether Art. 286 of the Constitution did not preclude the respondent from recovering tax in respect of coal exported out of the State of Madhya Pradesh, and in view of the advice given to the respondent by the Government of Madhya Pradesh, the respondent did not collect the tax in respect of coal which was exported by rail outside the State of Madhya Pradesh from about 1952. The respondent wanted to consult legal opinion on this point, but the State Government refused permission to the respondent to incur expenditure in that behalf. Subsequently, however, this question came to be decided by the High Court of Madhya Pradesh in a writ petition filed by M/s. Newton Chickli Collieries (Pvt.) Ltd. (No. 265 of 1957). The High Court held that the tax levied by the Janapada Sabha under S. 51 of the Act did not amount to a sales tax nor to an excise duty, and so, the respondent thought that it could levy tax even on coal exported by rail outside the State of Madhya Pradesh. In fact, after this judgment was pronounced by the High Court on August 6, 1958, the Provincial Government withdrew its instructions to the respondent not to levy tax on exported coal. That is how the respondent has issued notices against the appellants in respect of coal exported by rail out of the State of Madhya Pradesh in regard to the years for which assessment has already been levied against the appellants for the coal not so exported, and the contention of the appellants is that this reopening of the assessment is not permissible under the Rules.33. This contention appears to be well founded. We have already seen the scheme of the Rules and we have noticed that R. 10 provides that if no objection is filed, the Chairmans assessment shall be final and if an objection is received, the decision of the Mining Board would be final.In other words, the scheme clearly provides that at the end of each six monthly period, the tax has to be assessed notices to be issued to the assessee, his objections to be considered and the tax to be ultimately determined in the light of the decision on the said objections; and under R. 10, the two decisions specified therein become final. It may be that the Rules do not prescribe any limitation within which these steps have to be taken by the respondent for each period, but that is another matter. In view of the provisions of R. 10 it is difficult to hold that the respondent is entitled to reopen assessments already made and rendered final under the said Rule. There is no other provision for reopening assessment as we have under Ss. 34 and 35 of the Indian Income-tax Act, and so, the respondent is not justified in issuing notices for the years which are covered by assessment orders already passed. The finality provided for by R. 10 will work as much against the respondent as against the assessee. 34. In support of the appeals, another argument was sought to be raised against the increase of the rates. It was urged that the tax is in the nature of an excise duty or a sales-tax and, therefore, any increase in the said tax beyond the limit of 3 pies - the continuance of which has been saved by the provisions of Art. 143 of the Government of India Act, 1935 and Art. 277 of the Constitution - will be invalid. This argument is based on the terms used in the notification of the 16th December, 1935. Since coal is described as manufactured at the mines, the argument is that it is in the nature of an excise duty and since the notification also refers to coal sold for export by rail or sold otherwise than for export by rail, it is argued that it is a sales-tax. On the other hand, the respondent contends that it is neither a sales-tax nor an excise duty and as such, the rate can be increased subject, of course, to the requirements of S. 51 (2) of the Act. It appears that by notification issued on September 6, 1943, the preamble of the Rules was modified by substituting for the words "coal, coal dust or coke" by "coal and dust coal" and by deleting the words "manufactured at the mines". Curiously enough these amendments have not been made in the original notification itself. We have already noticed that this latter notification deleted R. 3. Some arguments were urged before us by learned counsel on both sides as to the effect of this notification which modified the preamble to the Rules. We do not, however, think it necessary to consider these arguments in the present appeals because of our conclusion that the impugned notices levying the tax @ 9 pies per ton are invalid for two reasons : the increase in the rates has not been sanctioned by the State Government under S. 51 (2) and an attempt to recover at the increased rate the tax for the years already covered by assessment orders passed in that behalf, is bared by R. 10.
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be deemed to be included in the expression "first imposition" under S. 51 (2). We are, therefore, inclined to accept the appellants construction of S. 51 (2). That being so, it is necessary to enquire whether the imposition of the tax at the rate of 9 pies has received the previous sanction of the local GovernmentTwo of these notifications were then produced before us by the respondent, and they supported the contention made by Mr. Choudhury. Therefore, the argument that the imposition @ 9 pies per ton has received the sanction of the Government must fail, and so, the impugned notices which seek to recover the tax from the appellants @ 9 pies per ton must be held to be invalid. The respondent is entitled to levy tax only @ 3 pies per ton because that levy has received the sanction of the Government, but if the respondent intends to increase the rate of the said tax, it must follow the procedure prescribed by S. 51 (2), provided of course, it is open to the respondent to increase the said taxThe genesis of the tax is somewhat interesting. It appears that roads were constructed by the Independent Mining Local Board at enormous cost at the request of the Mining interests and even debt had to be incurred by the Board for completing the work of the construction of roads. Since the mining companies received substantial benefit from these roads, the Legislature thought of levying a tax on coal, and that is the origin of the tax. When the first notification was issued on the 16th December, 1935 it authorised and sanctioned the imposition by the Independent Mining Local Board at Chhindwara in the Chhindwara District "of a tax at 3 pies per ton on coal, coal dust or coke, manufactured at the mines, sold for export by rail or sold otherwise than for export by rail, within the jurisdiction of the Independent Mining Local Board." This tax was recovered by the Board and thereafter by the respondent in respect of coal whether sold inside the district of Chhindwara or sold outside the district of Chhindwara or even outside the State of Madhya Pradesh. In other words, the total coal produced by each mining lease-holder substantially came to be taxed. But after the Constitution came into force, doubts arose as to whether Art. 286 of the Constitution did not preclude the respondent from recovering tax in respect of coal exported out of the State of Madhya Pradesh, and in view of the advice given to the respondent by the Government of Madhya Pradesh, the respondent did not collect the tax in respect of coal which was exported by rail outside the State of Madhya Pradesh from about 1952. The respondent wanted to consult legal opinion on this point, but the State Government refused permission to the respondent to incur expenditure in that behalf. Subsequently, however, this question came to be decided by the High Court of Madhya Pradesh in a writ petition filed by M/s. Newton Chickli Collieries (Pvt.) Ltd. (No. 265 of 1957). The High Court held that the tax levied by the Janapada Sabha under S. 51 of the Act did not amount to a sales tax nor to an excise duty, and so, the respondent thought that it could levy tax even on coal exported by rail outside the State of Madhya Pradesh. In fact, after this judgment was pronounced by the High Court on August 6, 1958, the Provincial Government withdrew its instructions to the respondent not to levy tax on exported coal33. This contention appears to be well founded. We have already seen the scheme of the Rules and we have noticed that R. 10 provides that if no objection is filed, the Chairmans assessment shall be final and if an objection is received, the decision of the Mining Board would be final.In other words, the scheme clearly provides that at the end of each six monthly period, the tax has to be assessed notices to be issued to the assessee, his objections to be considered and the tax to be ultimately determined in the light of the decision on the said objections; and under R. 10, the two decisions specified therein become final. It may be that the Rules do not prescribe any limitation within which these steps have to be taken by the respondent for each period, but that is another matter. In view of the provisions of R. 10 it is difficult to hold that the respondent is entitled to reopen assessments already made and rendered final under the said Rule. There is no other provision for reopening assessment as we have under Ss. 34 and 35 of the Indian Income-tax Act, and so, the respondent is not justified in issuing notices for the years which are covered by assessment orders already passed. The finality provided for by R. 10 will work as much against the respondent as against the assesseeIt appears that by notification issued on September 6, 1943, the preamble of the Rules was modified by substituting for the words "coal, coal dust or coke" by "coal and dust coal" and by deleting the words "manufactured at the mines". Curiously enough these amendments have not been made in the original notification itself. We have already noticed that this latter notification deleted R. 3. Some arguments were urged before us by learned counsel on both sides as to the effect of this notification which modified the preamble to the Rules. We do not, however, think it necessary to consider these arguments in the present appeals because of our conclusion that the impugned notices levying the tax @ 9 pies per ton are invalid for two reasons : the increase in the rates has not been sanctioned by the State Government under S. 51 (2) and an attempt to recover at the increased rate the tax for the years already covered by assessment orders passed in that behalf, is bared by R. 10.
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Praveen Ansari and Others Vs. State Transport Appellate Tribunal, Lucknow and Others | Section 68-F(1-C) appears to have been introduced to meet w ith the situation arising out of the inability of the Corporation to obtain all available temporary permits. Section 68-F(1-C) caters to such a situation where a scheme has been published and, therefore, the Corporation would be entitled, to tempo rary permits till the approved scheme is published, yet if the Corporation is unable to provide service by obtaining all requisite temporary permits, the State Transport Authority or the Regional Transport Authority as the case may be, in exe rcise of power conferred specifically upon it by section 68-F(1-C) can grant temporary permits to persons other than the Corporation to operate vehicles on the route for which the scheme is published till modified or approved scheme is published.6. It is not in dispute that there are 7 vacancies for temporary permits. It is an admitted position that the Corporation applied for only 3 permits. The State Transport Authority has not recorded finding that in public interest remaining 4 permits were not required to be issued. Undoubtedly, therefore, there were 4 vacancies for which 4 temporary permits could be issued by the State Transport Authority on this inter regional route. Undoubtedly the permits will have t o be temporary permits because the scheme has been published in respect of the route under section 68C.7. The State Transport Authority, the State Transport Appellate Tribunal and, the High Court fell into an error by interpreting section 68-F( 1-C) only to mean that even though there are 7 vacancies and the Corporation applied for only 3 temporary permits, once the Corporation made an application for temporary permits not for the full strength but something short of it there was no power left in the State Transport Authority to grant temporary permits to any one else. Obviously section 68-F(1-C) does not admit of such a construction. The State Transport Authority has power under sub section (1-C) to grant temporary permit to any person in respect of the area or the route or part thereof specified in the scheme. The expression any person would comprehend any person even other than the Corporation. One has to read section 68-F (1-A) and section 68-F (1-C) harmoniously. If the Corporation applies for temporary permits undoubtedly the State Transport Authority cannot grant permit to any one else if the Corporation has applied for all the permits. But section 68-F(1-C) clearly envisaged a situation where application for a temporary permit is not made under section 68-F(1-A) by the Corporation. And there is felt need for providing transport service on the route in question.8. Now it cannot be gain said that there were 7 vacancies for temporary permits because the strength was increased from 13 to 20. The State Transport Authority is the proper authority lo decide the strength of vehicles to be plied on a route. If the Corporation is willing to operate vehicles to the maximum strength undoubtedly the State Transport Authority will have to grant permit to the Corporation under section 68-F(1-A) to the exclusion of others. But if the Corporation was unable to provide vehicles for the optimum strength fixed by the State Transport Authority the remaining permits will have to be granted to any other person willing Jo obtain temporary permit and ply vehicle because in respect of the remaining strength there would be no application by the Corporation and section 68-F(1-C ) would be squarely attracted. In interpreting the provisions of Chapter IV-A of Motor Vehicles Act, 1939 it is undoubtedly true that the Corporation enjoys a preferential treatment in the matter of obtaining permits. The authority under the Act must not ever lose sight of the fact that the primary consideration must be the service available to the travelling public. While interpreting the provisions of the Motor Vehicles Act undoubtedly the competing claims between the Corporation and t he other private operators may be examined with reference to the provisions of the Act. But the overall consideration namely the service is for the benefit of the travelling public should never be overlooked for a moment.9. Reverting to t he facts of this case if the approach of the High Court is accepted it would lead to a startling result. Assuming there were 10 vacancies for temporary permits and the Corporation was able to provide only one vehicle and therefore applied for only one permit, according to the State Transport Appellate Tribunal as well as the High Court no temporary permit can be granted to any one else for the remaining 9 vacancies. Such is not the position emerging from a combined reading of section 68-F(1-A) and Section 68-F(1-C). The correct approach would be that keeping in view the strength of the vehicles fixed by the competent authority, the authority should first examine the application for number of temporary permits made by the Corporation. If the Corporation has made application for temporary permits covering all the vacancies the matter ends there. But if the Corporation does not apply for all the permits but only for some, the inescapable conclusion i s that for the remaining strength the Corporation has made no application for the temporary permits and section 68-F(1-C) would be squarely attracted. In That event the State Transport Authority or the Regional Transport Authority as the case may be will have to examine the application for temporary permits made by persons other than the Corporation and if they are found to be competent, eligible and qualified they may have to be granted permits for the benefit of the large travelling public. That is why power to increase strength of fleet operating on the route is conferred and has to be exercised in public interest meaning transport facility to travelling public. In this case there were 7 vacancies for temporary permits. The Corporation applied for only 3. It was incumbent upon the State Transport Authority to consider the applications of the present appellants for the remaining 4 vacancies and grant four permits according to law.10. Accordingly thi | 1[ds]The Corporation has published a scheme in respect of the route. Even when a scheme is published it is open to the State Transport Authority or the Regional Transport Authority as the case may be to fix or increase the number of vehicles that may operate on the route. But the power to increase the number must be exercised in public interest . It is common ground that the strength of vehicles on the route in question was raised from 13 to 20. Hence in view of this raising of the strength, 7 temporary permits could be granted. However, in view of the provision contained in section 68-F(1-A) consequent upon the scheme being published by the Corporation under section 68-C in respect of the route the Corporation will be entitled to all the temporary permits to the exclusion of any other operator. But Legislature was aw are of a possible situation where the Corporation though entitled to temporary permits to the exclusion of other operators may not be in a position to avail of this statutory right. Section 68-F(1-C) appears to have been introduced to meet w ith the situation arising out of the inability of the Corporation to obtain all available temporary permits. Section 68-F(1-C) caters to such a situation where a scheme has been published and, therefore, the Corporation would be entitled, to tempo rary permits till the approved scheme is published, yet if the Corporation is unable to provide service by obtaining all requisite temporary permits, the State Transport Authority or the Regional Transport Authority as the case may be, in exe rcise of power conferred specifically upon it by section 68-F(1-C) can grant temporary permits to persons other than the Corporation to operate vehicles on the route for which the scheme is published till modified or approved scheme isis not in dispute that there are 7 vacancies for temporary permits. It is an admitted position that the Corporation applied for only 3 permits. The State Transport Authority has not recorded finding that in public interest remaining 4 permits were not required to be issued. Undoubtedly, therefore, there were 4 vacancies for which 4 temporary permits could be issued by the State Transport Authority on this inter regional route. Undoubtedly the permits will have t o be temporary permits because the scheme has been published in respect of the route under sectionState Transport Authority, the State Transport Appellate Tribunal and, the High Court fell into an error by interpreting section 68-F( 1-C) only to mean that even though there are 7 vacancies and the Corporation applied for only 3 temporary permits, once the Corporation made an application for temporary permits not for the full strength but something short of it there was no power left in the State Transport Authority to grant temporary permits to any one else. Obviously section 68-F(1-C) does not admit of such a construction. The State Transport Authority has power under sub section (1-C) to grant temporary permit to any person in respect of the area or the route or part thereof specified in the scheme. The expression any person would comprehend any person even other than the Corporation. One has to read section 68-F (1-A) and section 68-F (1-C) harmoniously. If the Corporation applies for temporary permits undoubtedly the State Transport Authority cannot grant permit to any one else if the Corporation has applied for all the permits. But section 68-F(1-C) clearly envisaged a situation where application for a temporary permit is not made under section 68-F(1-A) by the Corporation. And there is felt need for providing transport service on the route init cannot be gain said that there were 7 vacancies for temporary permits because the strength was increased from 13 to 20. The State Transport Authority is the proper authority lo decide the strength of vehicles to be plied on a route. If the Corporation is willing to operate vehicles to the maximum strength undoubtedly the State Transport Authority will have to grant permit to the Corporation under section 68-F(1-A) to the exclusion of others. But if the Corporation was unable to provide vehicles for the optimum strength fixed by the State Transport Authority the remaining permits will have to be granted to any other person willing Jo obtain temporary permit and ply vehicle because in respect of the remaining strength there would be no application by the Corporation and section 68-F(1-C ) would be squarely attracted. In interpreting the provisions of Chapter IV-A of Motor Vehicles Act, 1939 it is undoubtedly true that the Corporation enjoys a preferential treatment in the matter of obtaining permits. The authority under the Act must not ever lose sight of the fact that the primary consideration must be the service available to the travelling public. While interpreting the provisions of the Motor Vehicles Act undoubtedly the competing claims between the Corporation and t he other private operators may be examined with reference to the provisions of the Act. But the overall consideration namely the service is for the benefit of the travelling public should never be overlooked for ato t he facts of this case if the approach of the High Court is accepted it would lead to a startling result. Assuming there were 10 vacancies for temporary permits and the Corporation was able to provide only one vehicle and therefore applied for only one permit, according to the State Transport Appellate Tribunal as well as the High Court no temporary permit can be granted to any one else for the remaining 9 vacancies. Such is not the position emerging from a combined reading of section 68-F(1-A) and Section 68-F(1-C). The correct approach would be that keeping in view the strength of the vehicles fixed by the competent authority, the authority should first examine the application for number of temporary permits made by the Corporation. If the Corporation has made application for temporary permits covering all the vacancies the matter ends there. But if the Corporation does not apply for all the permits but only for some, the inescapable conclusion i s that for the remaining strength the Corporation has made no application for the temporary permits and section 68-F(1-C) would be squarely attracted. In That event the State Transport Authority or the Regional Transport Authority as the case may be will have to examine the application for temporary permits made by persons other than the Corporation and if they are found to be competent, eligible and qualified they may have to be granted permits for the benefit of the large travelling public. That is why power to increase strength of fleet operating on the route is conferred and has to be exercised in public interest meaning transport facility to travelling public. In this case there were 7 vacancies for temporary permits. The Corporation applied for only 3. It was incumbent upon the State Transport Authority to consider the applications of the present appellants for the remaining 4 vacancies and grant four permits according tothis appeal is allowed and the orders of the State Transport Authority, the State Transport Appellate Tribunal and the High Court are set aside and the matter is remitted to the State Transport Authority to consider the applications of the present appellants for the remaining 4 vacancies and pass orders according to law. | 1 | 1,980 | 1,318 | ### 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:
Section 68-F(1-C) appears to have been introduced to meet w ith the situation arising out of the inability of the Corporation to obtain all available temporary permits. Section 68-F(1-C) caters to such a situation where a scheme has been published and, therefore, the Corporation would be entitled, to tempo rary permits till the approved scheme is published, yet if the Corporation is unable to provide service by obtaining all requisite temporary permits, the State Transport Authority or the Regional Transport Authority as the case may be, in exe rcise of power conferred specifically upon it by section 68-F(1-C) can grant temporary permits to persons other than the Corporation to operate vehicles on the route for which the scheme is published till modified or approved scheme is published.6. It is not in dispute that there are 7 vacancies for temporary permits. It is an admitted position that the Corporation applied for only 3 permits. The State Transport Authority has not recorded finding that in public interest remaining 4 permits were not required to be issued. Undoubtedly, therefore, there were 4 vacancies for which 4 temporary permits could be issued by the State Transport Authority on this inter regional route. Undoubtedly the permits will have t o be temporary permits because the scheme has been published in respect of the route under section 68C.7. The State Transport Authority, the State Transport Appellate Tribunal and, the High Court fell into an error by interpreting section 68-F( 1-C) only to mean that even though there are 7 vacancies and the Corporation applied for only 3 temporary permits, once the Corporation made an application for temporary permits not for the full strength but something short of it there was no power left in the State Transport Authority to grant temporary permits to any one else. Obviously section 68-F(1-C) does not admit of such a construction. The State Transport Authority has power under sub section (1-C) to grant temporary permit to any person in respect of the area or the route or part thereof specified in the scheme. The expression any person would comprehend any person even other than the Corporation. One has to read section 68-F (1-A) and section 68-F (1-C) harmoniously. If the Corporation applies for temporary permits undoubtedly the State Transport Authority cannot grant permit to any one else if the Corporation has applied for all the permits. But section 68-F(1-C) clearly envisaged a situation where application for a temporary permit is not made under section 68-F(1-A) by the Corporation. And there is felt need for providing transport service on the route in question.8. Now it cannot be gain said that there were 7 vacancies for temporary permits because the strength was increased from 13 to 20. The State Transport Authority is the proper authority lo decide the strength of vehicles to be plied on a route. If the Corporation is willing to operate vehicles to the maximum strength undoubtedly the State Transport Authority will have to grant permit to the Corporation under section 68-F(1-A) to the exclusion of others. But if the Corporation was unable to provide vehicles for the optimum strength fixed by the State Transport Authority the remaining permits will have to be granted to any other person willing Jo obtain temporary permit and ply vehicle because in respect of the remaining strength there would be no application by the Corporation and section 68-F(1-C ) would be squarely attracted. In interpreting the provisions of Chapter IV-A of Motor Vehicles Act, 1939 it is undoubtedly true that the Corporation enjoys a preferential treatment in the matter of obtaining permits. The authority under the Act must not ever lose sight of the fact that the primary consideration must be the service available to the travelling public. While interpreting the provisions of the Motor Vehicles Act undoubtedly the competing claims between the Corporation and t he other private operators may be examined with reference to the provisions of the Act. But the overall consideration namely the service is for the benefit of the travelling public should never be overlooked for a moment.9. Reverting to t he facts of this case if the approach of the High Court is accepted it would lead to a startling result. Assuming there were 10 vacancies for temporary permits and the Corporation was able to provide only one vehicle and therefore applied for only one permit, according to the State Transport Appellate Tribunal as well as the High Court no temporary permit can be granted to any one else for the remaining 9 vacancies. Such is not the position emerging from a combined reading of section 68-F(1-A) and Section 68-F(1-C). The correct approach would be that keeping in view the strength of the vehicles fixed by the competent authority, the authority should first examine the application for number of temporary permits made by the Corporation. If the Corporation has made application for temporary permits covering all the vacancies the matter ends there. But if the Corporation does not apply for all the permits but only for some, the inescapable conclusion i s that for the remaining strength the Corporation has made no application for the temporary permits and section 68-F(1-C) would be squarely attracted. In That event the State Transport Authority or the Regional Transport Authority as the case may be will have to examine the application for temporary permits made by persons other than the Corporation and if they are found to be competent, eligible and qualified they may have to be granted permits for the benefit of the large travelling public. That is why power to increase strength of fleet operating on the route is conferred and has to be exercised in public interest meaning transport facility to travelling public. In this case there were 7 vacancies for temporary permits. The Corporation applied for only 3. It was incumbent upon the State Transport Authority to consider the applications of the present appellants for the remaining 4 vacancies and grant four permits according to law.10. Accordingly thi
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### Explanation:
has been published and, therefore, the Corporation would be entitled, to tempo rary permits till the approved scheme is published, yet if the Corporation is unable to provide service by obtaining all requisite temporary permits, the State Transport Authority or the Regional Transport Authority as the case may be, in exe rcise of power conferred specifically upon it by section 68-F(1-C) can grant temporary permits to persons other than the Corporation to operate vehicles on the route for which the scheme is published till modified or approved scheme isis not in dispute that there are 7 vacancies for temporary permits. It is an admitted position that the Corporation applied for only 3 permits. The State Transport Authority has not recorded finding that in public interest remaining 4 permits were not required to be issued. Undoubtedly, therefore, there were 4 vacancies for which 4 temporary permits could be issued by the State Transport Authority on this inter regional route. Undoubtedly the permits will have t o be temporary permits because the scheme has been published in respect of the route under sectionState Transport Authority, the State Transport Appellate Tribunal and, the High Court fell into an error by interpreting section 68-F( 1-C) only to mean that even though there are 7 vacancies and the Corporation applied for only 3 temporary permits, once the Corporation made an application for temporary permits not for the full strength but something short of it there was no power left in the State Transport Authority to grant temporary permits to any one else. Obviously section 68-F(1-C) does not admit of such a construction. The State Transport Authority has power under sub section (1-C) to grant temporary permit to any person in respect of the area or the route or part thereof specified in the scheme. The expression any person would comprehend any person even other than the Corporation. One has to read section 68-F (1-A) and section 68-F (1-C) harmoniously. If the Corporation applies for temporary permits undoubtedly the State Transport Authority cannot grant permit to any one else if the Corporation has applied for all the permits. But section 68-F(1-C) clearly envisaged a situation where application for a temporary permit is not made under section 68-F(1-A) by the Corporation. And there is felt need for providing transport service on the route init cannot be gain said that there were 7 vacancies for temporary permits because the strength was increased from 13 to 20. The State Transport Authority is the proper authority lo decide the strength of vehicles to be plied on a route. If the Corporation is willing to operate vehicles to the maximum strength undoubtedly the State Transport Authority will have to grant permit to the Corporation under section 68-F(1-A) to the exclusion of others. But if the Corporation was unable to provide vehicles for the optimum strength fixed by the State Transport Authority the remaining permits will have to be granted to any other person willing Jo obtain temporary permit and ply vehicle because in respect of the remaining strength there would be no application by the Corporation and section 68-F(1-C ) would be squarely attracted. In interpreting the provisions of Chapter IV-A of Motor Vehicles Act, 1939 it is undoubtedly true that the Corporation enjoys a preferential treatment in the matter of obtaining permits. The authority under the Act must not ever lose sight of the fact that the primary consideration must be the service available to the travelling public. While interpreting the provisions of the Motor Vehicles Act undoubtedly the competing claims between the Corporation and t he other private operators may be examined with reference to the provisions of the Act. But the overall consideration namely the service is for the benefit of the travelling public should never be overlooked for ato t he facts of this case if the approach of the High Court is accepted it would lead to a startling result. Assuming there were 10 vacancies for temporary permits and the Corporation was able to provide only one vehicle and therefore applied for only one permit, according to the State Transport Appellate Tribunal as well as the High Court no temporary permit can be granted to any one else for the remaining 9 vacancies. Such is not the position emerging from a combined reading of section 68-F(1-A) and Section 68-F(1-C). The correct approach would be that keeping in view the strength of the vehicles fixed by the competent authority, the authority should first examine the application for number of temporary permits made by the Corporation. If the Corporation has made application for temporary permits covering all the vacancies the matter ends there. But if the Corporation does not apply for all the permits but only for some, the inescapable conclusion i s that for the remaining strength the Corporation has made no application for the temporary permits and section 68-F(1-C) would be squarely attracted. In That event the State Transport Authority or the Regional Transport Authority as the case may be will have to examine the application for temporary permits made by persons other than the Corporation and if they are found to be competent, eligible and qualified they may have to be granted permits for the benefit of the large travelling public. That is why power to increase strength of fleet operating on the route is conferred and has to be exercised in public interest meaning transport facility to travelling public. In this case there were 7 vacancies for temporary permits. The Corporation applied for only 3. It was incumbent upon the State Transport Authority to consider the applications of the present appellants for the remaining 4 vacancies and grant four permits according tothis appeal is allowed and the orders of the State Transport Authority, the State Transport Appellate Tribunal and the High Court are set aside and the matter is remitted to the State Transport Authority to consider the applications of the present appellants for the remaining 4 vacancies and pass orders according to law.
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Raj Bajrang Bahadur Singh Vs. Thakurain Bakhtraj Kuer | of the said villages on payment of the Government revenue as an absolute owner.5. The liability for the land revenue of the said villages will be with Dhuj Singh and his heirs and successors; the estate will have no concern with it.6. Although Dhuj Singh and his heirs are not given: the power of transfer, they will exercise all other rights of absolute ownership that is to say, the result is that the proprietor of the estate or my other heirs and successors will not eject Dhuj Singh or his heirs or successors in any way.7. Of course if Dhuj Singh or his heirs become ever heirless then the said villages will not escheat to the Government but will revert and form part of the estate.8. Hence with the soundness of my mind without any force or pressure and after having fully under-, stood and also having thought it proper I execute this will in favour of Dhuj Singh, my own ;on, with the above-mentioned terms."8. The learned counsel for the appellant naturally lays stress upon the words "absolute owner " (Malik kamil) and "generation after generation? (naslan bad naslan) used in reference to the interest which Dhuj Singh was to, take under the will. These words, it cannot be, disputed, are descriptive of a heritable and alienable estate in the donee, and they connote full proprietary rights unless there is something in the context or in the surrounding circumstances which indicate that absolute rights were not intended to, be conferred. In all such cases the true intention of the testor has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory.The object of the testator in executing the will clearly set out in the preamble to the document and in spite of the somewhat clumsy drafting that object to have been kept in view by the testator throughout, in making the provisions. The language and tenor of the document leave no doubt in OUT minds that the dominant intention of the testator was to make provision not for Dhuj Singh alone but for the benefit of his heirs and successors, " generation after generation " as the expression -has been used. The expression " heirs" in this context obviously means and refers to the personal heirs of Dhuj Singh determined according to the, general law of inheritance and not the successors to the estate under the special provisions of the Oudh Estates Act, for paragraph 6 of the will mentioned above is expressly intended to protect the personal heirs of Dhuj Singh from eviction from the properties in question by the future holders of the estate.9. Thus the beneficiaries under the will are Dhuj Singh himself and his-heirs in succession and to each such heir or set of heirs the rights of malik are given but without any power of alienation. On the total, extinction of this line of heirs the properties affected by-the will are to revert to the estate. As it was the intention of the testator that the properties should remain intact till the line of Dhuj Singh was exhausted and each successor was to enjoy and hold the properties without any power of alienation, obviously what the testator wanted was to create a series of life estates one after another, the ultimate reversion being given to the parent estate when there was a complete failure of heirs. To what extent such intention could be, given effect to by law is another matter and that we shall consider presently. But it can be said without hesitation that it was not the intention of the testator to confer anything but a life estate upon Dhuj Singh in respect of the properties covered by the will. The clause in the will imposing total restraint -on alienation is also a pointer in the same direction. In cases where the intention of the testator is to grant an absolute estate, an attempt to reduce the powers of the owner by imposing restraint on alienation would certainly be repelled on the ground of repugnancy; but where the restrictions are the primary things which the testator desires and they are consistent with the whole tenor of the Will, it is a material circumstance to be relied upon for displacing the presumption of absolute ownership implied in the use of the word "malik". We hold, therefore, that the courts below were right in holding that Dhuj Singh had only a life interest in the properties under the terms of his fathers will.10. Of course this by itself gives no comfort to the defendant; she has to establish, in order that she may be able to resist the plaintiffs claim, that the will created an independent interest in her favour following the death of Dhuj Singh. As we have said already, the testator did intend to create successive life estates in favour of the successive heirs of Dhuj Singh. This, it is contended by the Appellant is not permissible in law and he relies on the case of Tagore v. Tagore(1). It is quite true that no interest could be created in favour of an unborn person but when the gift is made to a class or series of persons, some of (1) 18 Weekly Report 359.11. Whom are in existence and some are not, it does not fail in its entirety; it is valid with regard to the persons who are in existence at the time of the testators death and is invalid as to the rest. The Widow, who is the next heir of Dhuj Singh, was in existence when the testator died and the life interest created in her favour should certainly take-effect. She thus acquired under the will an interest in the suit properties after the death of her husband, commensurate with the period of her own natural life and the plaintiff consequently has no present right to, possession. | 0[ds]Thus the beneficiaries under the will are Dhuj Singh himself and his-heirs in succession and to each such heir or set of heirs the rights of malik are given but without any power of alienation. On the total, extinction of this line of heirs the properties affected by-the will are to revert to the estate. As it was the intention of the testator that the properties should remain intact till the line of Dhuj Singh was exhausted and each successor was to enjoy and hold the properties without any power of alienation, obviously what the testator wanted was to create a series of life estates one after another, the ultimate reversion being given to the parent estate when there was a complete failure of heirs. To what extent such intention could be, given effect to by law is another matter and that we shall consider presently. But it can be said without hesitation that it was not the intention of the testator to confer anything but a life estate upon Dhuj Singh in respect of the properties covered by the will. The clause in the will imposing total restraint -on alienation is also a pointer in the same direction. In cases where the intention of the testator is to grant an absolute estate, an attempt to reduce the powers of the owner by imposing restraint on alienation would certainly be repelled on the ground of repugnancy; but where the restrictions are the primary things which the testator desires and they are consistent with the whole tenor of the Will, it is a material circumstance to be relied upon for displacing the presumption of absolute ownership implied in the use of the word "malik". We hold, therefore, that the courts below were right in holding that Dhuj Singh had only a life interest in the properties under the terms of his fatherscourse this by itself gives no comfort to the defendant; she has to establish, in order that she may be able to resist the plaintiffs claim, that the will created an independent interest in her favour following the death of Dhuj Singh. As we have said already, the testator did intend to create successive life estates in favour of the successive heirs of Dhuj Singh. This, it is contended by the Appellant is not permissible in law and he relies on the case of Tagore v. Tagore(1). It is quite true that no interest could be created in favour of an unborn person but when the gift is made to a class or series of persons, some of (1) 18 Weekly Reportare in existence and some are not, it does not fail in its entirety; it is valid with regard to the persons who are in existence at the time of the testators death and is invalid as to the rest. The Widow, who is the next heir of Dhuj Singh, was in existence when the testator died and the life interest created in her favour should certainly take-effect. She thus acquired under the will an interest in the suit properties after the death of her husband, commensurate with the period of her own natural life and the plaintiff consequently has no present right to, possession. | 0 | 3,328 | 581 | ### 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:
of the said villages on payment of the Government revenue as an absolute owner.5. The liability for the land revenue of the said villages will be with Dhuj Singh and his heirs and successors; the estate will have no concern with it.6. Although Dhuj Singh and his heirs are not given: the power of transfer, they will exercise all other rights of absolute ownership that is to say, the result is that the proprietor of the estate or my other heirs and successors will not eject Dhuj Singh or his heirs or successors in any way.7. Of course if Dhuj Singh or his heirs become ever heirless then the said villages will not escheat to the Government but will revert and form part of the estate.8. Hence with the soundness of my mind without any force or pressure and after having fully under-, stood and also having thought it proper I execute this will in favour of Dhuj Singh, my own ;on, with the above-mentioned terms."8. The learned counsel for the appellant naturally lays stress upon the words "absolute owner " (Malik kamil) and "generation after generation? (naslan bad naslan) used in reference to the interest which Dhuj Singh was to, take under the will. These words, it cannot be, disputed, are descriptive of a heritable and alienable estate in the donee, and they connote full proprietary rights unless there is something in the context or in the surrounding circumstances which indicate that absolute rights were not intended to, be conferred. In all such cases the true intention of the testor has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory.The object of the testator in executing the will clearly set out in the preamble to the document and in spite of the somewhat clumsy drafting that object to have been kept in view by the testator throughout, in making the provisions. The language and tenor of the document leave no doubt in OUT minds that the dominant intention of the testator was to make provision not for Dhuj Singh alone but for the benefit of his heirs and successors, " generation after generation " as the expression -has been used. The expression " heirs" in this context obviously means and refers to the personal heirs of Dhuj Singh determined according to the, general law of inheritance and not the successors to the estate under the special provisions of the Oudh Estates Act, for paragraph 6 of the will mentioned above is expressly intended to protect the personal heirs of Dhuj Singh from eviction from the properties in question by the future holders of the estate.9. Thus the beneficiaries under the will are Dhuj Singh himself and his-heirs in succession and to each such heir or set of heirs the rights of malik are given but without any power of alienation. On the total, extinction of this line of heirs the properties affected by-the will are to revert to the estate. As it was the intention of the testator that the properties should remain intact till the line of Dhuj Singh was exhausted and each successor was to enjoy and hold the properties without any power of alienation, obviously what the testator wanted was to create a series of life estates one after another, the ultimate reversion being given to the parent estate when there was a complete failure of heirs. To what extent such intention could be, given effect to by law is another matter and that we shall consider presently. But it can be said without hesitation that it was not the intention of the testator to confer anything but a life estate upon Dhuj Singh in respect of the properties covered by the will. The clause in the will imposing total restraint -on alienation is also a pointer in the same direction. In cases where the intention of the testator is to grant an absolute estate, an attempt to reduce the powers of the owner by imposing restraint on alienation would certainly be repelled on the ground of repugnancy; but where the restrictions are the primary things which the testator desires and they are consistent with the whole tenor of the Will, it is a material circumstance to be relied upon for displacing the presumption of absolute ownership implied in the use of the word "malik". We hold, therefore, that the courts below were right in holding that Dhuj Singh had only a life interest in the properties under the terms of his fathers will.10. Of course this by itself gives no comfort to the defendant; she has to establish, in order that she may be able to resist the plaintiffs claim, that the will created an independent interest in her favour following the death of Dhuj Singh. As we have said already, the testator did intend to create successive life estates in favour of the successive heirs of Dhuj Singh. This, it is contended by the Appellant is not permissible in law and he relies on the case of Tagore v. Tagore(1). It is quite true that no interest could be created in favour of an unborn person but when the gift is made to a class or series of persons, some of (1) 18 Weekly Report 359.11. Whom are in existence and some are not, it does not fail in its entirety; it is valid with regard to the persons who are in existence at the time of the testators death and is invalid as to the rest. The Widow, who is the next heir of Dhuj Singh, was in existence when the testator died and the life interest created in her favour should certainly take-effect. She thus acquired under the will an interest in the suit properties after the death of her husband, commensurate with the period of her own natural life and the plaintiff consequently has no present right to, possession.
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### Explanation:
Thus the beneficiaries under the will are Dhuj Singh himself and his-heirs in succession and to each such heir or set of heirs the rights of malik are given but without any power of alienation. On the total, extinction of this line of heirs the properties affected by-the will are to revert to the estate. As it was the intention of the testator that the properties should remain intact till the line of Dhuj Singh was exhausted and each successor was to enjoy and hold the properties without any power of alienation, obviously what the testator wanted was to create a series of life estates one after another, the ultimate reversion being given to the parent estate when there was a complete failure of heirs. To what extent such intention could be, given effect to by law is another matter and that we shall consider presently. But it can be said without hesitation that it was not the intention of the testator to confer anything but a life estate upon Dhuj Singh in respect of the properties covered by the will. The clause in the will imposing total restraint -on alienation is also a pointer in the same direction. In cases where the intention of the testator is to grant an absolute estate, an attempt to reduce the powers of the owner by imposing restraint on alienation would certainly be repelled on the ground of repugnancy; but where the restrictions are the primary things which the testator desires and they are consistent with the whole tenor of the Will, it is a material circumstance to be relied upon for displacing the presumption of absolute ownership implied in the use of the word "malik". We hold, therefore, that the courts below were right in holding that Dhuj Singh had only a life interest in the properties under the terms of his fatherscourse this by itself gives no comfort to the defendant; she has to establish, in order that she may be able to resist the plaintiffs claim, that the will created an independent interest in her favour following the death of Dhuj Singh. As we have said already, the testator did intend to create successive life estates in favour of the successive heirs of Dhuj Singh. This, it is contended by the Appellant is not permissible in law and he relies on the case of Tagore v. Tagore(1). It is quite true that no interest could be created in favour of an unborn person but when the gift is made to a class or series of persons, some of (1) 18 Weekly Reportare in existence and some are not, it does not fail in its entirety; it is valid with regard to the persons who are in existence at the time of the testators death and is invalid as to the rest. The Widow, who is the next heir of Dhuj Singh, was in existence when the testator died and the life interest created in her favour should certainly take-effect. She thus acquired under the will an interest in the suit properties after the death of her husband, commensurate with the period of her own natural life and the plaintiff consequently has no present right to, possession.
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The Commissioner Of Income-Taxbombay Vs. E.D.Sheppard | was no enforceable agreement as between the assessee and the company which could be made the subject matter of a legal claim for damages for compensation at his instance in the event of its termination or cancellation by the company. The agency agreement in that case was terminable at the will of the company and if the company chose to do so, the assessee had no remedy at law in regard to the same. The argument was that therefore there was no enforceable agreement between the assessee and the company which could be made the subject matter of a legal claim for compensation. This argument was repelled and this Court said that in all such cases one has really to look to the nature of the receipt in the hands of the assessee irrespective of any consideration as to what was actuating the mind of the other party. This Court referred with approval to the observations made by Rowlatt, J., in Chibbett v. Joseph Robinson and Sons ((1924) 9 Tax Cas. 48), which we have earlier quoted. This Court also referred with approval to the decision of W. A. Guff v. Commissioner of Income-tax ([1957] 31 I.T.R. 826.), and said that it was immaterial whether the amount paid was compensation for which the employer was liable at law or was a payment made ex gratia.In view of these decisions we must over-rule the first contention urged on behalf of the appellant that compensation in Explanation 2 to s. 7 (1) means compensation which is payable or compellable at law.2a. We now turn to the second contention. Prior to the amendments introduced by the Finance Act, 1955, Explanation 2 to s. 7 (1) made it clear that a payment which was made solely as compensation for loss of employment was not assessable, while a payment which was made as remuneration for past services was taxable as income. The principle was that compensation for wrongful repudiation of a service agreement or for loss of office or employment or cessation of business was a capital receipt, though the payment might be entirely voluntary and the recipient might have no legal right to any compensation at all. In such cases the compensation was ( deemed to be a capital receipt because it was in respect of the source of income. The argument of learned counsel for the department however is that Explanation 2 treated any payment received by an assessee from an employer or former employer as a profit in lieu of salary (except where the payment was from a provident or other fund mentioned therein) ; therefore, the explanation was an artificial definition which treated any payment received by an assessee from his employer or former employer as income and no consideration as to whether the payment related to employment or not or whether it was capital or income need be considered, though learned counsel for the department concedes that a payment made solely as compensation for loss of employment does not come within the artificial definition of the Explanation. We do not think that the proposition put in the very wide form in which learned counsel for the department has put it, can be accepted as correct. In Mahesh Anantrai Pattani v. The Commissioner of Income-tax, Bombay North, Ahmedabad this Court had to consider s. 7 (1) of the Act and Explanation 2 thereto, as they stood prior to the amendments in 1955. The facts of that case were these. M. A. Pattani who was Dewan of the State of Bhavnagar was granted a monthly pension of Rs. 2, 000/- by the Maharajah of the State by an order dated January 15, 1948. On March 1, 1948, the State of Bhavnagar merged in the United States of Saurashtra and the Maharajah ceased to be the ruler of the State. Subsequently on May 31, 1950, the Maharajah directed his banker in Bombay to pay Pattani a sum of Rs. 5, 00, 000/- and said that the payment was made in consideration of the loyal and meritorious services which Pattani had rendered to the State. The question which arose for decision was whether the aforesaid payment of Rs. 5, 00, 000/- was liable to tax under s. 7 (1) read with Explanation 2. This Court held that the sum ( of Rs. 5, 00, 000/- was given to Pattani not as a payment in consideration of the services already rendered by Pattani as the Dewan of the State but merely as a gift in token of the Maharajahs affection and regard for the assessee.Therefore, it was held the payment was not liable to be assessed to tax under s. 7 (1), Explanation 2. The ratio of the decision was that the payment was a capital receipt, and not income assessable to income-tax, in the bands of the assessee. Apparently, this Court did not accept the proposition that every payment to an assessee by his employer or former employer was income and no question of treating such payment as capital in the bands of the assessee need be considered.3. Once it is held that the payment in the present case was a payment made solely as compensation for loss of employment, there is an end of the appeal; because Explanation 2 in clear terms excepts such payment from being treated as a profit received in lieu of salary. The Tribunal held on the evidence before it that the payment was made solely as com- pensation for loss of employment. The High Court rightly took the view that no distinction could be made between compensation for loss of employment and compensation for loss of prospects rooted in that employment. The High Court also rightly pointed out that if the object of the payment was unrelated to the relation between the employer and the employee, it would not fall within the expression "profit received in lieu of salary" in Explanation 2. We think that the High Court committed no error in answering the question referred to it. | 0[ds]We consider that both the points urged on behalf of the department are without substance and are not supported by decisions including decisions of thisview of these decisions we mustthe first contention urged on behalf of the appellant that compensation in Explanation 2 to s. 7 (1) means compensation which is payable or compellable atdo not think that the proposition put in the very wide form in which learned counsel for the department has put it, can be accepted as correct.Once it is held that the payment in the present case was a payment made solely as compensation for loss of employment, there is an end of the appeal; because Explanation 2 in clear terms excepts such payment from being treated as a profit received in lieu of salary. The Tribunal held on the evidence before it that the payment was made solely as compensation for loss of employment. The High Court rightly took the view that no distinction could be made between compensation for loss of employment and compensation for loss of prospects rooted in that employment. The High Court also rightly pointed out that if the object of the payment was unrelated to the relation between the employer and the employee, it would not fall within the expression "profit received in lieu of salary" in Explanation 2. We think that the High Court committed no error in answering the question referred to it. | 0 | 5,561 | 252 | ### 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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was no enforceable agreement as between the assessee and the company which could be made the subject matter of a legal claim for damages for compensation at his instance in the event of its termination or cancellation by the company. The agency agreement in that case was terminable at the will of the company and if the company chose to do so, the assessee had no remedy at law in regard to the same. The argument was that therefore there was no enforceable agreement between the assessee and the company which could be made the subject matter of a legal claim for compensation. This argument was repelled and this Court said that in all such cases one has really to look to the nature of the receipt in the hands of the assessee irrespective of any consideration as to what was actuating the mind of the other party. This Court referred with approval to the observations made by Rowlatt, J., in Chibbett v. Joseph Robinson and Sons ((1924) 9 Tax Cas. 48), which we have earlier quoted. This Court also referred with approval to the decision of W. A. Guff v. Commissioner of Income-tax ([1957] 31 I.T.R. 826.), and said that it was immaterial whether the amount paid was compensation for which the employer was liable at law or was a payment made ex gratia.In view of these decisions we must over-rule the first contention urged on behalf of the appellant that compensation in Explanation 2 to s. 7 (1) means compensation which is payable or compellable at law.2a. We now turn to the second contention. Prior to the amendments introduced by the Finance Act, 1955, Explanation 2 to s. 7 (1) made it clear that a payment which was made solely as compensation for loss of employment was not assessable, while a payment which was made as remuneration for past services was taxable as income. The principle was that compensation for wrongful repudiation of a service agreement or for loss of office or employment or cessation of business was a capital receipt, though the payment might be entirely voluntary and the recipient might have no legal right to any compensation at all. In such cases the compensation was ( deemed to be a capital receipt because it was in respect of the source of income. The argument of learned counsel for the department however is that Explanation 2 treated any payment received by an assessee from an employer or former employer as a profit in lieu of salary (except where the payment was from a provident or other fund mentioned therein) ; therefore, the explanation was an artificial definition which treated any payment received by an assessee from his employer or former employer as income and no consideration as to whether the payment related to employment or not or whether it was capital or income need be considered, though learned counsel for the department concedes that a payment made solely as compensation for loss of employment does not come within the artificial definition of the Explanation. We do not think that the proposition put in the very wide form in which learned counsel for the department has put it, can be accepted as correct. In Mahesh Anantrai Pattani v. The Commissioner of Income-tax, Bombay North, Ahmedabad this Court had to consider s. 7 (1) of the Act and Explanation 2 thereto, as they stood prior to the amendments in 1955. The facts of that case were these. M. A. Pattani who was Dewan of the State of Bhavnagar was granted a monthly pension of Rs. 2, 000/- by the Maharajah of the State by an order dated January 15, 1948. On March 1, 1948, the State of Bhavnagar merged in the United States of Saurashtra and the Maharajah ceased to be the ruler of the State. Subsequently on May 31, 1950, the Maharajah directed his banker in Bombay to pay Pattani a sum of Rs. 5, 00, 000/- and said that the payment was made in consideration of the loyal and meritorious services which Pattani had rendered to the State. The question which arose for decision was whether the aforesaid payment of Rs. 5, 00, 000/- was liable to tax under s. 7 (1) read with Explanation 2. This Court held that the sum ( of Rs. 5, 00, 000/- was given to Pattani not as a payment in consideration of the services already rendered by Pattani as the Dewan of the State but merely as a gift in token of the Maharajahs affection and regard for the assessee.Therefore, it was held the payment was not liable to be assessed to tax under s. 7 (1), Explanation 2. The ratio of the decision was that the payment was a capital receipt, and not income assessable to income-tax, in the bands of the assessee. Apparently, this Court did not accept the proposition that every payment to an assessee by his employer or former employer was income and no question of treating such payment as capital in the bands of the assessee need be considered.3. Once it is held that the payment in the present case was a payment made solely as compensation for loss of employment, there is an end of the appeal; because Explanation 2 in clear terms excepts such payment from being treated as a profit received in lieu of salary. The Tribunal held on the evidence before it that the payment was made solely as com- pensation for loss of employment. The High Court rightly took the view that no distinction could be made between compensation for loss of employment and compensation for loss of prospects rooted in that employment. The High Court also rightly pointed out that if the object of the payment was unrelated to the relation between the employer and the employee, it would not fall within the expression "profit received in lieu of salary" in Explanation 2. We think that the High Court committed no error in answering the question referred to it.
### Response:
0
### Explanation:
We consider that both the points urged on behalf of the department are without substance and are not supported by decisions including decisions of thisview of these decisions we mustthe first contention urged on behalf of the appellant that compensation in Explanation 2 to s. 7 (1) means compensation which is payable or compellable atdo not think that the proposition put in the very wide form in which learned counsel for the department has put it, can be accepted as correct.Once it is held that the payment in the present case was a payment made solely as compensation for loss of employment, there is an end of the appeal; because Explanation 2 in clear terms excepts such payment from being treated as a profit received in lieu of salary. The Tribunal held on the evidence before it that the payment was made solely as compensation for loss of employment. The High Court rightly took the view that no distinction could be made between compensation for loss of employment and compensation for loss of prospects rooted in that employment. The High Court also rightly pointed out that if the object of the payment was unrelated to the relation between the employer and the employee, it would not fall within the expression "profit received in lieu of salary" in Explanation 2. We think that the High Court committed no error in answering the question referred to it.
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Modified Voluntary Retirement Scheme of 2002 of Azam Jahi Mill Workers Association Vs. National Textile Corporation Limited & Ors | action by submitting that case of 318 ex-employees is not comparable with those of 134 ex-employees as 318 ex-employees vacated the quarters and they were not in possession and that only 134 ex-employees remained in possession of the quarters. For the first time before this Court, in the counter affidavit, it is now the case on behalf of the respondent KUDA and others that to avoid any litigation and/or litigation cost, it was proposed to allot 200 Sq. Yards of plots free of cost. The respondents therefore cannot be permitted to improve their case which was not even their case earlier viz. at the time when they made a proposal to permit them to allot 200 Sq. Yards of plots free of cost to 134 ex-employees and even it was not the case so stated in the G.O. No.463 dated 27.06.2007 and even it was not the case before the High Court. Therefore, the respondents more particularly respondent Nos.2 and 3 cannot be permitted to improve their case by filing the affidavit before this Court for the first time. Therefore, the decision of this Court in the case of Shri Ram Krishna Dalmia (Supra), which has been relied upon by the learned Counsel appearing for the respondent Nos.2 and 3, shall not be applicable to the facts of the case on hand. Even otherwise on going through the entire decision of this Court in the case of Shri Ram Krishna Dalmia (Supra), we are of the opinion that the said decision shall not be of any assistance to the respondent Nos.2 and 3. It was the case with respect to the classification and the Union Government tried to justify the basis of classification by way of affidavit and it was the case on behalf of the writ petitioners that the basis of classification must appear on the face of the notification itself and reference cannot be made to any extraneous matter and to that it is observed and held that there can be no objection to the matters brought to the notice of the Court by way of affidavit being taken into consideration alongwith the matters specified in the notification in order to ascertain whether there was any valid basis for treating the appellants and/or their companies as a class by themselves. We fail to appreciate as to how the said decision shall be applicable to the facts of the case on hand. 9.6 Now, so far as the submission on behalf of the respondent Nos.2 and 3 relying upon the decision of this Court in the case of Anup Kumar Senapati (Supra) that there is no concept of negative equality under Article 14 of the Constitution and the submission that merely because there was any mistake on the part of the respondents in allotting 200 Sq. Yards of land to the said 138 persons and therefore, the appellants cannot claim the parity is concerned, again the same has no substance. At the outset it is required to be noted that it was/is never the case on behalf of the respondents that those 134 persons were allotted the plots by mistake and/or there was any wrong committed in allotting 200 Sq. Yards of plot to the said 134 persons. Therefore, there is no question of applicability of any negative equality. Therefore, the aforesaid decision shall not be applicable to the facts of the case on hand. 9.7 Now, so far as the submission on behalf of the respondents that they do not have any sufficient land at present to allot 200 Sq. Yards of plots to remaining 318 ex-employees and that all those 318 ex-employees vacated the quarters voluntarily and they settled in their houses is concerned, at the outset it is required to be noted that merely because for whatever reason and even as a law abiding person they vacated the quarters, they cannot be put to disadvantageous situation being a law abiding persons. Even it cannot be presumed that all those 318 ex-employees who vacated the quarters and stayed elsewhere were settled. It cannot be presumed like that without any factual data. There may be many ex-employees who were compelled to vacate the quarters and who might not have settled or might be staying in a one room house. In any case, to allot 200 Sq. Yards of plots to 134 ex-employees to avoid undue hardship to the ex-employees and as a welfare measure and as a rehabilitation to only 134 case ex- employees and not other ex-employees similarly situated, would be discriminatory and violative of Article 14 of the Constitution. As observed hereinabove, on the contrary, to allot the plots to 134 employees on the ground that they were in unauthorized occupation and therefore, to avoid the litigation / litigation cost would be giving a premium to those who continued to be in illegal unauthorized occupation and to punish those ex-employees who were found to be law abiding and vacated the quarters pursuant to the notice dated 17.07.1986. Even the justification to differentiate the case between two classes of ex-employees is not germane. If remaining 318 ex-employees would not have vacated the quarters and would have remained in unauthorized occupation, even as per the case on behalf of the respondents is accepted, then those who remained in unauthorized occupation subsequently might have been allotted to 200 Sq. Yards of plots free of cost like 134 ex-employees who were found to be in unauthorized occupation. Therefore, as such there is no justification at all to deny allotment of 200 Sq. Yards of plots free of cost to each of 318 ex-employees, which were allotted to other 134 ex-employees who otherwise were similarly situated. It will be open for the respondent Nos.2 and 3 to approach the respondent No.1 and/or the State Government for allotment of additional land and/or to allot the plots from the remaining land of the respondent No.4 Mills which might be vacant and available with the Central Government / NTC as the case may be. | 1[ds]At the outset it is required to be noted that 318 ex- employees of the erstwhile respondent No.4 Mills prayed for equality and claimed the reliefs at par with other similarly situated 134 ex-employees of the erstwhile respondent No.4 Mills who were allotted 200 Sq. Yards of plots free of cost.9.1 It is to be noted and it cannot be disputed that even at one point of time as admitted by the learned Counsel appearing on behalf of KUDA that 318 ex-employees who were not allotted 200 Sq. Yards of plots are as such similarly situated to those 134 ex-employees of the erstwhile respondent No.4 Mills who were allotted 200 Sq. Yards of plot free of cost pursuant to the approval vide G.O. No.463 dated 27.06.2007. All of them as such were working with the respondent No.4. All of them were ex-employees of the erstwhile respondent No.4 Mills. All of them were residing in the quarters allotted by the Mills. All of them took voluntary retirement under the Modified Voluntary Scheme in the year 2002. All of them got the benefits under the Modified Voluntary Retirement Scheme of 2002 and all of them were relieved on and from 31.08.2002. However, 318 ex- employees vacated their quarters from time to time pursuant to the notice dated 17.07.1986. Thus, they abided the notice dated 17.07.1986. However, despite the notice dated 17.07.1986 and even after they were relieved on and from 31.08.2002, 134 ex-employees continued to retain the quarters and they were in unauthorized occupation of the quarters. Therefore, the only difference between 134 ex- employees and 318 ex-employees was that 318 ex-employees were law abiding persons who vacated the quarters pursuant to the notice dated 17.07.1986 and 134 ex-employees remained in unauthorized occupation of the quarters.At this stage it is required to be noted that at the time when the proceedings for closure of respondent No.4 Mill was held before the Ministry of Labour, a request was made to allot the quarters to the concerned workmen at reasonable rates and in the order granting approval for closure, it was submitted on behalf of the Mills that the request to allot the quarters is under consideration by the management. That, after the closure permission, proceedings were initiated by KUDA to acquire the land of respondent No.4 Mills to an extent of 135.33 Acres. However, it appears that the Vice Chairman of KUDA vide letter / communication dated 28.12.2006 submitted their proposal to permit KUDA to allot 200 Sq. Yards of plots free of cost to 134 ex-employees of erstwhile respondent No.4 Mills. In the letter it was specifically mentioned that to avoid undue hardship to the ex-employees and as a welfare measure a proposal was made by the Vice Chairman of KUDA to permit KUDA to allot 200 Sq. Yards of developed plots free of cost to 134 employees of the erstwhile respondent No.4 Mills. Vide G.O. No.463 dated 27.06.2007, the State Government accepted the said proposal and granted the permission to allot 200 Sq. Yards of developed plots free of cost to each of 134 employees of erstwhile respondent No.4 Mills. Nothing further was mentioned either in the communication / letter dated 28.12.2006 nor in the G.O. No.463 dated 27.06.2007 that to avoid any litigation and/or litigation cost as now stated in the affidavit in reply it was proposed to allot 200 Sq. Yards of plots to 134 ex-employees. However, thereafter when a request was made on behalf of the remaining 318 ex-employees, who as such were similarly situated to those 134 ex-employees, also to allot to them 200 Sq. Yards of house plots, their request came to be turned down. From the aforesaid facts and circumstances and the observations made hereinabove, it is found that 318 ex- employees were not allotted the 200 Sq. Yards of plots and 134 ex-employees who were allotted 200 Sq. Yards of plots free of cost who as such were similarly situated and as such there is no difference between them at all. On the contrary, 318 ex-employees can be said to be law abiding ex- employees who vacated the quarters after 1986 but before 2002 pursuant to the notice dated 17.07.1986. It is not in dispute that 134 ex-employees who were allotted 200 Sq. Yards of plots free of cost were in unauthorized occupation of the quarters and they did not vacate the quarters despite the notice dated 17.07.1986 and even after 31.08.2002 when they accepted the voluntary retirement and relieved. Therefore, to allot the plots to those employees who were found to be in unauthorized occupation would tantamount to giving a premium to their illegality and remaining in occupation and possession of the quarters illegally and unauthorizedly. As observed hereinabove, as both the classes of employees are found to be similarly situated except the difference as observed hereinabove, 318 ex-employees who as such were similarly situated with those 134 ex-employees when claimed the equality and parity, as such the learned Single Judge rightly issued the writ of mandamus and directed the respondents to treat all of them at par and allotted 200 Sq. Yards of plots to remaining 318 ex-employees also as per the G.O. No.463.9.2 The submission on behalf of the respondents more particularly learned Counsel appearing for respondent Nos.2 and 3 that the appellant Association – 318 ex-employees have no legal right and that respondent Nos.2 and 3 have no legal duty has no substance and cannot be accepted. Right to equality guaranteed under Article 14 of the Constitution of India is vested right in favour of the person who claims equality and parity and the same is enforceable against State / State instrumentalities in exercise of powers under Article 226 of the Constitution of India. We find no justification at all in treating 318 ex-employees different from those 134 ex-employees who were allotted 200 Sq. Yards of plots free of cost. We find that as such the equals are treated unequally and therefore, when the equals are treated unequally, there is a violation of Article 14 of the Constitution and therefore, the appellants were entitled to the relief sought even in exercise of powers under Article 226 of the Constitution of India.In the present case allotment of 200 Sq.Yards free of cost to 134 employees was to avoid undue hardship to the ex- employees and as a welfare measure. As observed hereinabove those 318 ex-employees who are denied the benefit of allotment of 200 Sq.Yards of plots free of cost are similarly placed persons with that of 134 employees who are allotted 200 Sq.Yards plots free of cost. There is no rationale justification in providing differential treatment to one class of ex-employees similarly placed with another class of ex- employees who are allotted the plots.9.4 Now, so far as the case on behalf of KUDA now before this Court in the form of counter affidavit that to avoid any litigation and litigation cost and to get vacant possession of the remaining land, it was proposed and decided to allot 200 Sq. Yards of plots free of cost to 134 ex-employees who were found to be in occupation and possession of the quarters and therefore, there was a valid reason to allot 200 Sq. Yards of plots to 134 ex-employees and the reliance placed on the decision in the case of Shri Ram Krishna Dalmia (Supra) that to determine the intelligible differentia an affidavit produced before this Court can be considered and/or referred to is concerned, the aforesaid seems to be attractive but has no substance in the facts and circumstances of the case. It is to be noted that in the proposal made by the Vice Chairman, KUDA to the State Government in the year 2007 to permit them to allot 200 Sq. Yards of plots free of cost to 134 ex- employees, there was no reference at all that to avoid any litigation and/or litigation cost it was proposed to allot 200 Sq. Yards of plots free of cost. As observed hereinabove and even when the G.O. No.463 dated 27.06.2007 is seen, it is found in the letter dated 28.12.2006 that to avoid undue hardship to the ex-employees and as a welfare measure. Even in paragraph 4 of the G.O. No.463 dated 27.06.2007, the State Government has specifically observed that after careful consideration of the matter, as a rehabilitation and a welfare measure, Government has agreed to the proposal of the Vice Chairman, KUDA and permit them to allot 200 Sq. Yards of developed plots free of cost to each 134 ex-employees of the erstwhile respondent No.4 Mills. Therefore, the allotment of 200 Sq. Yards of plots free of cost to 134 ex-employees was as a rehabilitation and welfare measure of ex-employees of the erstwhile respondent No.4 Mills. Even before the learned Single Judge also, it was not the case pleaded before the High Court that those 134 persons were allotted 200 Sq. Yards of plots free of cost to avoid any litigation and/or litigation cost which is now pleaded for the first time before this Court.9.5 From the above and even from the grounds of appeal before the Division Bench, respondents tried to justify their action by submitting that case of 318 ex-employees is not comparable with those of 134 ex-employees as 318 ex-employees vacated the quarters and they were not in possession and that only 134 ex-employees remained in possession of the quarters. For the first time before this Court, in the counter affidavit, it is now the case on behalf of the respondent KUDA and others that to avoid any litigation and/or litigation cost, it was proposed to allot 200 Sq. Yards of plots free of cost. The respondents therefore cannot be permitted to improve their case which was not even their case earlier viz. at the time when they made a proposal to permit them to allot 200 Sq. Yards of plots free of cost to 134 ex-employees and even it was not the case so stated in the G.O. No.463 dated 27.06.2007 and even it was not the case before the High Court. Therefore, the respondents more particularly respondent Nos.2 and 3 cannot be permitted to improve their case by filing the affidavit before this Court for the first time. Therefore, the decision of this Court in the case of Shri Ram Krishna Dalmia (Supra), which has been relied upon by the learned Counsel appearing for the respondent Nos.2 and 3, shall not be applicable to the facts of the case on hand. Even otherwise on going through the entire decision of this Court in the case of Shri Ram Krishna Dalmia (Supra), we are of the opinion that the said decision shall not be of any assistance to the respondent Nos.2 and 3. It was the case with respect to the classification and the Union Government tried to justify the basis of classification by way of affidavit and it was the case on behalf of the writ petitioners that the basis of classification must appear on the face of the notification itself and reference cannot be made to any extraneous matter and to that it is observed and held that there can be no objection to the matters brought to the notice of the Court by way of affidavit being taken into consideration alongwith the matters specified in the notification in order to ascertain whether there was any valid basis for treating the appellants and/or their companies as a class by themselves. We fail to appreciate as to how the said decision shall be applicable to the facts of the case on hand.9.6 Now, so far as the submission on behalf of the respondent Nos.2 and 3 relying upon the decision of this Court in the case of Anup Kumar Senapati (Supra) that there is no concept of negative equality under Article 14 of the Constitution and the submission that merely because there was any mistake on the part of the respondents in allotting 200 Sq. Yards of land to the said 138 persons and therefore, the appellants cannot claim the parity is concerned, again the same has no substance. At the outset it is required to be noted that it was/is never the case on behalf of the respondents that those 134 persons were allotted the plots by mistake and/or there was any wrong committed in allotting 200 Sq. Yards of plot to the said 134 persons. Therefore, there is no question of applicability of any negative equality. Therefore, the aforesaid decision shall not be applicable to the facts of the case on hand.9.7 Now, so far as the submission on behalf of the respondents that they do not have any sufficient land at present to allot 200 Sq. Yards of plots to remaining 318 ex-employees and that all those 318 ex-employees vacated the quarters voluntarily and they settled in their houses is concerned, at the outset it is required to be noted that merely because for whatever reason and even as a law abiding person they vacated the quarters, they cannot be put to disadvantageous situation being a law abiding persons. Even it cannot be presumed that all those 318 ex-employees who vacated the quarters and stayed elsewhere were settled. It cannot be presumed like that without any factual data. There may be many ex-employees who were compelled to vacate the quarters and who might not have settled or might be staying in a one room house. In any case, to allot 200 Sq. Yards of plots to 134 ex-employees to avoid undue hardship to the ex-employees and as a welfare measure and as a rehabilitation to only 134 case ex- employees and not other ex-employees similarly situated, would be discriminatory and violative of Article 14 of the Constitution. As observed hereinabove, on the contrary, to allot the plots to 134 employees on the ground that they were in unauthorized occupation and therefore, to avoid the litigation / litigation cost would be giving a premium to those who continued to be in illegal unauthorized occupation and to punish those ex-employees who were found to be law abiding and vacated the quarters pursuant to the notice dated 17.07.1986. Even the justification to differentiate the case between two classes of ex-employees is not germane. If remaining 318 ex-employees would not have vacated the quarters and would have remained in unauthorized occupation, even as per the case on behalf of the respondents is accepted, then those who remained in unauthorized occupation subsequently might have been allotted to 200 Sq. Yards of plots free of cost like 134 ex-employees who were found to be in unauthorized occupation. Therefore, as such there is no justification at all to deny allotment of 200 Sq. Yards of plots free of cost to each of 318 ex-employees, which were allotted to other 134 ex-employees who otherwise were similarly situated. It will be open for the respondent Nos.2 and 3 to approach the respondent No.1 and/or the State Government for allotment of additional land and/or to allot the plots from the remaining land of the respondent No.4 Mills which might be vacant and available with the Central Government / NTC as the case may be. | 1 | 9,396 | 2,694 | ### 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:
action by submitting that case of 318 ex-employees is not comparable with those of 134 ex-employees as 318 ex-employees vacated the quarters and they were not in possession and that only 134 ex-employees remained in possession of the quarters. For the first time before this Court, in the counter affidavit, it is now the case on behalf of the respondent KUDA and others that to avoid any litigation and/or litigation cost, it was proposed to allot 200 Sq. Yards of plots free of cost. The respondents therefore cannot be permitted to improve their case which was not even their case earlier viz. at the time when they made a proposal to permit them to allot 200 Sq. Yards of plots free of cost to 134 ex-employees and even it was not the case so stated in the G.O. No.463 dated 27.06.2007 and even it was not the case before the High Court. Therefore, the respondents more particularly respondent Nos.2 and 3 cannot be permitted to improve their case by filing the affidavit before this Court for the first time. Therefore, the decision of this Court in the case of Shri Ram Krishna Dalmia (Supra), which has been relied upon by the learned Counsel appearing for the respondent Nos.2 and 3, shall not be applicable to the facts of the case on hand. Even otherwise on going through the entire decision of this Court in the case of Shri Ram Krishna Dalmia (Supra), we are of the opinion that the said decision shall not be of any assistance to the respondent Nos.2 and 3. It was the case with respect to the classification and the Union Government tried to justify the basis of classification by way of affidavit and it was the case on behalf of the writ petitioners that the basis of classification must appear on the face of the notification itself and reference cannot be made to any extraneous matter and to that it is observed and held that there can be no objection to the matters brought to the notice of the Court by way of affidavit being taken into consideration alongwith the matters specified in the notification in order to ascertain whether there was any valid basis for treating the appellants and/or their companies as a class by themselves. We fail to appreciate as to how the said decision shall be applicable to the facts of the case on hand. 9.6 Now, so far as the submission on behalf of the respondent Nos.2 and 3 relying upon the decision of this Court in the case of Anup Kumar Senapati (Supra) that there is no concept of negative equality under Article 14 of the Constitution and the submission that merely because there was any mistake on the part of the respondents in allotting 200 Sq. Yards of land to the said 138 persons and therefore, the appellants cannot claim the parity is concerned, again the same has no substance. At the outset it is required to be noted that it was/is never the case on behalf of the respondents that those 134 persons were allotted the plots by mistake and/or there was any wrong committed in allotting 200 Sq. Yards of plot to the said 134 persons. Therefore, there is no question of applicability of any negative equality. Therefore, the aforesaid decision shall not be applicable to the facts of the case on hand. 9.7 Now, so far as the submission on behalf of the respondents that they do not have any sufficient land at present to allot 200 Sq. Yards of plots to remaining 318 ex-employees and that all those 318 ex-employees vacated the quarters voluntarily and they settled in their houses is concerned, at the outset it is required to be noted that merely because for whatever reason and even as a law abiding person they vacated the quarters, they cannot be put to disadvantageous situation being a law abiding persons. Even it cannot be presumed that all those 318 ex-employees who vacated the quarters and stayed elsewhere were settled. It cannot be presumed like that without any factual data. There may be many ex-employees who were compelled to vacate the quarters and who might not have settled or might be staying in a one room house. In any case, to allot 200 Sq. Yards of plots to 134 ex-employees to avoid undue hardship to the ex-employees and as a welfare measure and as a rehabilitation to only 134 case ex- employees and not other ex-employees similarly situated, would be discriminatory and violative of Article 14 of the Constitution. As observed hereinabove, on the contrary, to allot the plots to 134 employees on the ground that they were in unauthorized occupation and therefore, to avoid the litigation / litigation cost would be giving a premium to those who continued to be in illegal unauthorized occupation and to punish those ex-employees who were found to be law abiding and vacated the quarters pursuant to the notice dated 17.07.1986. Even the justification to differentiate the case between two classes of ex-employees is not germane. If remaining 318 ex-employees would not have vacated the quarters and would have remained in unauthorized occupation, even as per the case on behalf of the respondents is accepted, then those who remained in unauthorized occupation subsequently might have been allotted to 200 Sq. Yards of plots free of cost like 134 ex-employees who were found to be in unauthorized occupation. Therefore, as such there is no justification at all to deny allotment of 200 Sq. Yards of plots free of cost to each of 318 ex-employees, which were allotted to other 134 ex-employees who otherwise were similarly situated. It will be open for the respondent Nos.2 and 3 to approach the respondent No.1 and/or the State Government for allotment of additional land and/or to allot the plots from the remaining land of the respondent No.4 Mills which might be vacant and available with the Central Government / NTC as the case may be.
### Response:
1
### Explanation:
justify their action by submitting that case of 318 ex-employees is not comparable with those of 134 ex-employees as 318 ex-employees vacated the quarters and they were not in possession and that only 134 ex-employees remained in possession of the quarters. For the first time before this Court, in the counter affidavit, it is now the case on behalf of the respondent KUDA and others that to avoid any litigation and/or litigation cost, it was proposed to allot 200 Sq. Yards of plots free of cost. The respondents therefore cannot be permitted to improve their case which was not even their case earlier viz. at the time when they made a proposal to permit them to allot 200 Sq. Yards of plots free of cost to 134 ex-employees and even it was not the case so stated in the G.O. No.463 dated 27.06.2007 and even it was not the case before the High Court. Therefore, the respondents more particularly respondent Nos.2 and 3 cannot be permitted to improve their case by filing the affidavit before this Court for the first time. Therefore, the decision of this Court in the case of Shri Ram Krishna Dalmia (Supra), which has been relied upon by the learned Counsel appearing for the respondent Nos.2 and 3, shall not be applicable to the facts of the case on hand. Even otherwise on going through the entire decision of this Court in the case of Shri Ram Krishna Dalmia (Supra), we are of the opinion that the said decision shall not be of any assistance to the respondent Nos.2 and 3. It was the case with respect to the classification and the Union Government tried to justify the basis of classification by way of affidavit and it was the case on behalf of the writ petitioners that the basis of classification must appear on the face of the notification itself and reference cannot be made to any extraneous matter and to that it is observed and held that there can be no objection to the matters brought to the notice of the Court by way of affidavit being taken into consideration alongwith the matters specified in the notification in order to ascertain whether there was any valid basis for treating the appellants and/or their companies as a class by themselves. We fail to appreciate as to how the said decision shall be applicable to the facts of the case on hand.9.6 Now, so far as the submission on behalf of the respondent Nos.2 and 3 relying upon the decision of this Court in the case of Anup Kumar Senapati (Supra) that there is no concept of negative equality under Article 14 of the Constitution and the submission that merely because there was any mistake on the part of the respondents in allotting 200 Sq. Yards of land to the said 138 persons and therefore, the appellants cannot claim the parity is concerned, again the same has no substance. At the outset it is required to be noted that it was/is never the case on behalf of the respondents that those 134 persons were allotted the plots by mistake and/or there was any wrong committed in allotting 200 Sq. Yards of plot to the said 134 persons. Therefore, there is no question of applicability of any negative equality. Therefore, the aforesaid decision shall not be applicable to the facts of the case on hand.9.7 Now, so far as the submission on behalf of the respondents that they do not have any sufficient land at present to allot 200 Sq. Yards of plots to remaining 318 ex-employees and that all those 318 ex-employees vacated the quarters voluntarily and they settled in their houses is concerned, at the outset it is required to be noted that merely because for whatever reason and even as a law abiding person they vacated the quarters, they cannot be put to disadvantageous situation being a law abiding persons. Even it cannot be presumed that all those 318 ex-employees who vacated the quarters and stayed elsewhere were settled. It cannot be presumed like that without any factual data. There may be many ex-employees who were compelled to vacate the quarters and who might not have settled or might be staying in a one room house. In any case, to allot 200 Sq. Yards of plots to 134 ex-employees to avoid undue hardship to the ex-employees and as a welfare measure and as a rehabilitation to only 134 case ex- employees and not other ex-employees similarly situated, would be discriminatory and violative of Article 14 of the Constitution. As observed hereinabove, on the contrary, to allot the plots to 134 employees on the ground that they were in unauthorized occupation and therefore, to avoid the litigation / litigation cost would be giving a premium to those who continued to be in illegal unauthorized occupation and to punish those ex-employees who were found to be law abiding and vacated the quarters pursuant to the notice dated 17.07.1986. Even the justification to differentiate the case between two classes of ex-employees is not germane. If remaining 318 ex-employees would not have vacated the quarters and would have remained in unauthorized occupation, even as per the case on behalf of the respondents is accepted, then those who remained in unauthorized occupation subsequently might have been allotted to 200 Sq. Yards of plots free of cost like 134 ex-employees who were found to be in unauthorized occupation. Therefore, as such there is no justification at all to deny allotment of 200 Sq. Yards of plots free of cost to each of 318 ex-employees, which were allotted to other 134 ex-employees who otherwise were similarly situated. It will be open for the respondent Nos.2 and 3 to approach the respondent No.1 and/or the State Government for allotment of additional land and/or to allot the plots from the remaining land of the respondent No.4 Mills which might be vacant and available with the Central Government / NTC as the case may be.
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M/S. Ram Chand And Sons Sugar Mills Pvt. Ltd Vs. Kanhaya Lal Bhargava & Ors | to the suit. The contension of the learned counsel for the appellant is that the director mentioned in r. 3 is the director mentioned in r. 1 thereof. To put it in other words, the director who signs and verifies the pleadings can only be required to appear personally to answer material questions relating to the suit. Though this cotention appear to be plausible, it is not sound. Rules 1, 2 and 3 of O. XXIX of the Code use the words ?any director?. Under r. 1 thereof a director who is able to depose to the facts of the case may sign and verify the pleadings; under r. 2, a summons may be served upon any director :and under r. 3, any director who may be able to answer meterial questions relating to the suit may be required to appear personally before the Court. The adjective ?any? indicates that any one of the directions with the requisite qualifications, prescribed by r. 1, 2 and 3 can perform the functions laid down in each of the rules respectively. One can visualize a situation where a director who signed and verify the pleadings may not be in a position to answer certain material questions relating to the suit. If so there is no reason why the director who may be able to answer such material questions is excluded from the scope of r. 3. Such an interpretation will defeat the purpose of the said Rule. Therefore, ?Any director? in r. 3 need not be the same director who has signed and verified a pleading or on whom summons has been served. He can be any one of the directors who will be in a position to answer material questions relating to the suit. 7. Even so, learned counsel for the appellant contended that O. XXIX, r. 3, of the Code did not provide for any penalty in case the director required to appear in Court failed to do so. By drawing analogy from other provisions where a particular default carried a definite penality it was argued that in the absence of any such provisions it must be held that the Legislature intentionally had not provided for any penalty for the said default. In this context the learned counsel had taken us through O. IX r. 12, O. X, r. 4, O. XI, r. 21, O. XVI, r. 20, and O. XVIII, rr. 2 and 3 of the Code. No doubt under these provisions particular penalties have been provided for specific defaults. For certain defaults, the relevant Orders provide for making an ex parte decree or for striking out the defence. But it does not follow from these provisions that because no such consequential provision is found in O.XXIX, the Court is helpless against recalcitrant plaintiff or defen-dant who happens to be a company. There is nothing in O. XXIX of the Code which, expressly or by necessary implication, precludes the exercise of the inherent power of the Court under s. 151 of the Code. We are, therefore, of the opinion that in a case of default made by a director who failed to appear in Court when he was so required under O. XXIX, r. 3, of the Code the Court can make a suitable consequential order under Section 151 of the Code as may be necessary for ends of justice or to prevent to abuse of the process of the Court. 8. The next question is whether the Court can, as it did in the present case, strike off the defence of the appellant for the default made by its director to appear in Court. Learned counsel for the respondent contended that both the courts in effect found that the director was guilty of a recalcitrant attitude and that he abused the process of the Court and, therefore, the Subordinate Judge had rightly exercised his inherent power in striking off the defence of the appellant. We are satisfied, as the courts below were, Jugal Kishore, the director of the appellant company, purposely for one reason or other, defied the orders of the Court on the pretext of illness and had certainly abused the process of the Court. The learned Subordinate Judge would have been well within his rights to take suitable action against him, but neither of the courts found that the appellant was responsible or instrumental for the director not attending the Court. Unless, there is a finding of collusion between the appellant and the director in that the former prevented the latter from appearing in Court, we find it difficult to make the company constructively liable for the default of one of its directors. Many situations may be visualized when one of the directors may not obey the directions of the company or its boards of directors or may be even working against its interests. 9. It cannot be disputed that a company and the directors of the company are different legal personalities. The company derives its powers from the memorandum of association. Some of powers are delegated to the directors. For certain purposes they are said to be trustees and for some others to be the agents or managers of the company. It is not necessary in this case to define the exact relationship to a director qua the company. The acts of the directors within the powers conferred on them may be binding on the company. But their acts outside the said powers will not bind the company. It is not possible to hold that the director in refusing to respond to the notice given by the Court was acting within the scope of the powers conferred on him. He is only liable for his acts and not the company. If it was established that the company was guilty of abuse of the process of the Court by preventing the director from attending the Court, the Court would have been justified in striking off the defence. But no such finding was given by the courts below. | 1[ds]Having regard to the said decisions, the scope of the inherent power of a Court under Section 151 of the Code may be defined thus: The inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is insconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication than no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of Section 151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the CourtNo doubt under these provisions particular penalties have been provided for specific defaults. For certain defaults, the relevant Orders provide for making an ex parte decree or for striking out the defence. But it does not follow from these provisions that because no such consequential provision is found in O.XXIX, the Court is helpless against recalcitrant plaintiff or defen-dant who happens to be a company. There is nothing in O. XXIX of the Code which, expressly or by necessary implication, precludes the exercise of the inherent power of the Court under s. 151 of the Code. We are, therefore, of the opinion that in a case of default made by a director who failed to appear in Court when he was so required under O. XXIX, r. 3, of the Code the Court can make a suitable consequential order under Section 151 of the Code as may be necessary for ends of justice or to prevent to abuse of the process of the CourtWe are satisfied, as the courts below were, Jugal Kishore, the director of the appellant company, purposely for one reason or other, defied the orders of the Court on the pretext of illness and had certainly abused the process of the Court. The learned Subordinate Judge would have been well within his rights to take suitable action against him, but neither of the courts found that the appellant was responsible or instrumental for the director not attending the Court. Unless, there is a finding of collusion between the appellant and the director in that the former prevented the latter from appearing in Court, we find it difficult to make the company constructively liable for the default of one of its directors. Many situations may be visualized when one of the directors may not obey the directions of the company or its boards of directors or may be even working against its interests9. It cannot be disputed that a company and the directors of the company are different legal personalities. The company derives its powers from the memorandum of association. Some of powers are delegated to the directors. For certain purposes they are said to be trustees and for some others to be the agents or managers of the company. It is not necessary in this case to define the exact relationship to a director qua the company. The acts of the directors within the powers conferred on them may be binding on the company. But their acts outside the said powers will not bind the company. It is not possible to hold that the director in refusing to respond to the notice given by the Court was acting within the scope of the powers conferred on him. He is only liable for his acts and not the company. If it was established that the company was guilty of abuse of the process of the Court by preventing the director from attending the Court, the Court would have been justified in striking off the defence. But no such finding was given by the courts below. | 1 | 2,802 | 722 | ### Instruction:
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to the suit. The contension of the learned counsel for the appellant is that the director mentioned in r. 3 is the director mentioned in r. 1 thereof. To put it in other words, the director who signs and verifies the pleadings can only be required to appear personally to answer material questions relating to the suit. Though this cotention appear to be plausible, it is not sound. Rules 1, 2 and 3 of O. XXIX of the Code use the words ?any director?. Under r. 1 thereof a director who is able to depose to the facts of the case may sign and verify the pleadings; under r. 2, a summons may be served upon any director :and under r. 3, any director who may be able to answer meterial questions relating to the suit may be required to appear personally before the Court. The adjective ?any? indicates that any one of the directions with the requisite qualifications, prescribed by r. 1, 2 and 3 can perform the functions laid down in each of the rules respectively. One can visualize a situation where a director who signed and verify the pleadings may not be in a position to answer certain material questions relating to the suit. If so there is no reason why the director who may be able to answer such material questions is excluded from the scope of r. 3. Such an interpretation will defeat the purpose of the said Rule. Therefore, ?Any director? in r. 3 need not be the same director who has signed and verified a pleading or on whom summons has been served. He can be any one of the directors who will be in a position to answer material questions relating to the suit. 7. Even so, learned counsel for the appellant contended that O. XXIX, r. 3, of the Code did not provide for any penalty in case the director required to appear in Court failed to do so. By drawing analogy from other provisions where a particular default carried a definite penality it was argued that in the absence of any such provisions it must be held that the Legislature intentionally had not provided for any penalty for the said default. In this context the learned counsel had taken us through O. IX r. 12, O. X, r. 4, O. XI, r. 21, O. XVI, r. 20, and O. XVIII, rr. 2 and 3 of the Code. No doubt under these provisions particular penalties have been provided for specific defaults. For certain defaults, the relevant Orders provide for making an ex parte decree or for striking out the defence. But it does not follow from these provisions that because no such consequential provision is found in O.XXIX, the Court is helpless against recalcitrant plaintiff or defen-dant who happens to be a company. There is nothing in O. XXIX of the Code which, expressly or by necessary implication, precludes the exercise of the inherent power of the Court under s. 151 of the Code. We are, therefore, of the opinion that in a case of default made by a director who failed to appear in Court when he was so required under O. XXIX, r. 3, of the Code the Court can make a suitable consequential order under Section 151 of the Code as may be necessary for ends of justice or to prevent to abuse of the process of the Court. 8. The next question is whether the Court can, as it did in the present case, strike off the defence of the appellant for the default made by its director to appear in Court. Learned counsel for the respondent contended that both the courts in effect found that the director was guilty of a recalcitrant attitude and that he abused the process of the Court and, therefore, the Subordinate Judge had rightly exercised his inherent power in striking off the defence of the appellant. We are satisfied, as the courts below were, Jugal Kishore, the director of the appellant company, purposely for one reason or other, defied the orders of the Court on the pretext of illness and had certainly abused the process of the Court. The learned Subordinate Judge would have been well within his rights to take suitable action against him, but neither of the courts found that the appellant was responsible or instrumental for the director not attending the Court. Unless, there is a finding of collusion between the appellant and the director in that the former prevented the latter from appearing in Court, we find it difficult to make the company constructively liable for the default of one of its directors. Many situations may be visualized when one of the directors may not obey the directions of the company or its boards of directors or may be even working against its interests. 9. It cannot be disputed that a company and the directors of the company are different legal personalities. The company derives its powers from the memorandum of association. Some of powers are delegated to the directors. For certain purposes they are said to be trustees and for some others to be the agents or managers of the company. It is not necessary in this case to define the exact relationship to a director qua the company. The acts of the directors within the powers conferred on them may be binding on the company. But their acts outside the said powers will not bind the company. It is not possible to hold that the director in refusing to respond to the notice given by the Court was acting within the scope of the powers conferred on him. He is only liable for his acts and not the company. If it was established that the company was guilty of abuse of the process of the Court by preventing the director from attending the Court, the Court would have been justified in striking off the defence. But no such finding was given by the courts below.
### Response:
1
### Explanation:
Having regard to the said decisions, the scope of the inherent power of a Court under Section 151 of the Code may be defined thus: The inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is insconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication than no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of Section 151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the CourtNo doubt under these provisions particular penalties have been provided for specific defaults. For certain defaults, the relevant Orders provide for making an ex parte decree or for striking out the defence. But it does not follow from these provisions that because no such consequential provision is found in O.XXIX, the Court is helpless against recalcitrant plaintiff or defen-dant who happens to be a company. There is nothing in O. XXIX of the Code which, expressly or by necessary implication, precludes the exercise of the inherent power of the Court under s. 151 of the Code. We are, therefore, of the opinion that in a case of default made by a director who failed to appear in Court when he was so required under O. XXIX, r. 3, of the Code the Court can make a suitable consequential order under Section 151 of the Code as may be necessary for ends of justice or to prevent to abuse of the process of the CourtWe are satisfied, as the courts below were, Jugal Kishore, the director of the appellant company, purposely for one reason or other, defied the orders of the Court on the pretext of illness and had certainly abused the process of the Court. The learned Subordinate Judge would have been well within his rights to take suitable action against him, but neither of the courts found that the appellant was responsible or instrumental for the director not attending the Court. Unless, there is a finding of collusion between the appellant and the director in that the former prevented the latter from appearing in Court, we find it difficult to make the company constructively liable for the default of one of its directors. Many situations may be visualized when one of the directors may not obey the directions of the company or its boards of directors or may be even working against its interests9. It cannot be disputed that a company and the directors of the company are different legal personalities. The company derives its powers from the memorandum of association. Some of powers are delegated to the directors. For certain purposes they are said to be trustees and for some others to be the agents or managers of the company. It is not necessary in this case to define the exact relationship to a director qua the company. The acts of the directors within the powers conferred on them may be binding on the company. But their acts outside the said powers will not bind the company. It is not possible to hold that the director in refusing to respond to the notice given by the Court was acting within the scope of the powers conferred on him. He is only liable for his acts and not the company. If it was established that the company was guilty of abuse of the process of the Court by preventing the director from attending the Court, the Court would have been justified in striking off the defence. But no such finding was given by the courts below.
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Modhusudano Mollana Vs. Kontaru Naiko & Others | the provisions of the act and the rules framed thereunder, he could not have advanced loan in excess of that amount and that his doing so made the registration of the appellant as a money-lender void and, therefore, the suit for recovery of Rs. 2,000 even was not maintainable. These contentions were not accepted by the trial Court which decreed the suit against the defendants with the direction that defendants Nos. 2 and 3 sons of defendant No. 1, were not personally liable and were liable to the extent of the assets of their father in their hands. The High Court, however, took a different view, accepted the aforesaid contentions of the defendants and dismissed the suit. 4. The sole contention for the appellant is that the High Court was in error in holding that the registration of the appellant as a registered money-lender in March 1952 became void when he advanced a loan in suit in excess of Rs. 2,000 in 1954 and that the High Court was also in error in holding that he could not have advanced the loan in excess of the maximum capital for which the registration certificate was wanted. 5. The relevant provisions of the Act may now be set out. Capital is defined in S. 2 (c), to mean that which a money-lender invests in the business of money-lending whether in money or in kind. Registered money-lender, according to S. 2 (m), means a person to whom a registration certificate has been granted under S. 5. Section 5 provides for the registration of money-lenders and a registration fee. Sub-section (1) thereof requires the applicant for registration to mention in the application particulars mentioned in that sub-section and such other particulars as may be prescribed. Sub-section (3) empowers the Provincial Government to prescribe by rules for different classes of money-lenders and for different areas a registration fee not exceeding Rs. 25 to be paid by an applicant for registration. Sub-section (4) empowers the Sub-Registrar to grant a registration in the prescribed form to the applicant except where the certificate previously granted to him has been cancelled under S. 18 and the order of cancellation is in force. Section 6 enacts that the registration certificate granted will be in force 5 years from the date on which it is granted. Section 7 provides for the registered money-lender to maintain accounts and to give receipts. 6. Section 8 which provides for suits for recovery of loans by registered money-lenders reads:"Suit for recovery of loan maintainable by registered money-lenders only-A money-lender shall not be entitled to institute a suit for the recovery of a loan advanced by him after the date on which this section comes into force unless he was registered under this Act at the time when such loan was advanced: Provided that a money-lender shall be entitled to institute a suit to recover a loan advanced by him at any time in the course of two years after the date on which the section comes into force, if he is granted a certificate of registration under S. 5 at any time before the expiration of the said years." Section 9 provides for the maximum rates at which interest may be decreed. Various other sections deal with other matters which the legislature thought fit to provide for in order to achieve the object of the Act which, according to the preamble, is to regulate money-lending transactions and to grant relief to debtors in the State of Orissa. 7. Rule 1, Cl. (c), of the Orissa Money-Lenders Rules, 1939, defines maximum capital to mean the highest total amount of the capital sums which may remain invested in a money-lending business on any day during the period of the registration certificate. Rule 3, Cl. (iii), requires every application for the registration of a money-lender to mention the maximum capital for which the certificate is wanted. Rule 4 lays down the registration fees payable and fixes the fees according to the maximum capital in respect of which an application for such certificate is made. Rule 5 provides that registration certificate would be in Form III and that during the currency of a registration certificate application may be made for a registration certificate of a higher denomination and the provisions of Rr. 3 to 5 shall, as far as may be, apply to it, credit being given to the registration fee already paid by the applicant. 8. The question for decision in this case is practically the same as came up for decision before this Court in Sant Saranlal v. Parsuram Sahu, Civil Appeal No. 248 of 1964: (AIR 1966 SC 1852 ), judgment in which has been delivered today. The relevant provisions of the Bihar Money-Lenders Act, 1938 and the Bihar Money-Lenders (Regulation of Transaction) Act, 1938 are practically similar to the relevant provisions of the Orissa Act mentioned above. What we have said in that case appropriately covers the contentions of the parties in this case. We do not, therefore, consider it necessary to repeat the discussion of the various contentions in this case. 9.We hold that in the absence of any specific provision in the Act in this case providing for the fixing of the maximum capital which a money-lender can invest in money-lending business, it was not open to the State Government to frame a rule in that regard and that the rules framed by it about mentioning, in the application, the maximum capital for which the registration certificate was wanted and the mention in the certificate that the amount of the maximum capital for which the certificate is granted, do not lead to the conclusion that the registration of the money-lender will become void if he exceeds the limit of the maximum capital laid down in the registration certificate. 10. We do not consider it necessary now to decide the other point raised with respect to the retrospective operation of the registration certificates of higher denomination obtained during the currency of a registration certificate. | 1[ds]9.We hold that in the absence of any specific provision in the Act in this case providing for the fixing of the maximum capital which a money-lender can invest in money-lending business, it was not open to the State Government to frame a rule in that regard and that the rules framed by it about mentioning, in the application, the maximum capital for which the registration certificate was wanted and the mention in the certificate that the amount of the maximum capital for which the certificate is granted, do not lead to the conclusion that the registration of the money-lender will become void if he exceeds the limit of the maximum capital laid down in the registration certificate10. We do not consider it necessary now to decide the other point raised with respect to the retrospective operation of the registration certificates of higher denomination obtained during the currency of a registration certificate8. The question for decision in this case is practically the same as came up for decision before this Court in Sant Saranlal v. Parsuram Sahu, Civil Appeal No. 248 of 1964: (AIR 1966 SC 1852 ), judgment in which has been delivered today. The relevant provisions of the Bihars Act, 1938 and the Bihars (Regulation of Transaction) Act, 1938 are practically similar to the relevant provisions of the Orissa Act mentioned above. What we have said in that case appropriately covers the contentions of the parties in this case. We do not, therefore, consider it necessary to repeat the discussion of the various contentions in this case. | 1 | 1,294 | 284 | ### Instruction:
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the provisions of the act and the rules framed thereunder, he could not have advanced loan in excess of that amount and that his doing so made the registration of the appellant as a money-lender void and, therefore, the suit for recovery of Rs. 2,000 even was not maintainable. These contentions were not accepted by the trial Court which decreed the suit against the defendants with the direction that defendants Nos. 2 and 3 sons of defendant No. 1, were not personally liable and were liable to the extent of the assets of their father in their hands. The High Court, however, took a different view, accepted the aforesaid contentions of the defendants and dismissed the suit. 4. The sole contention for the appellant is that the High Court was in error in holding that the registration of the appellant as a registered money-lender in March 1952 became void when he advanced a loan in suit in excess of Rs. 2,000 in 1954 and that the High Court was also in error in holding that he could not have advanced the loan in excess of the maximum capital for which the registration certificate was wanted. 5. The relevant provisions of the Act may now be set out. Capital is defined in S. 2 (c), to mean that which a money-lender invests in the business of money-lending whether in money or in kind. Registered money-lender, according to S. 2 (m), means a person to whom a registration certificate has been granted under S. 5. Section 5 provides for the registration of money-lenders and a registration fee. Sub-section (1) thereof requires the applicant for registration to mention in the application particulars mentioned in that sub-section and such other particulars as may be prescribed. Sub-section (3) empowers the Provincial Government to prescribe by rules for different classes of money-lenders and for different areas a registration fee not exceeding Rs. 25 to be paid by an applicant for registration. Sub-section (4) empowers the Sub-Registrar to grant a registration in the prescribed form to the applicant except where the certificate previously granted to him has been cancelled under S. 18 and the order of cancellation is in force. Section 6 enacts that the registration certificate granted will be in force 5 years from the date on which it is granted. Section 7 provides for the registered money-lender to maintain accounts and to give receipts. 6. Section 8 which provides for suits for recovery of loans by registered money-lenders reads:"Suit for recovery of loan maintainable by registered money-lenders only-A money-lender shall not be entitled to institute a suit for the recovery of a loan advanced by him after the date on which this section comes into force unless he was registered under this Act at the time when such loan was advanced: Provided that a money-lender shall be entitled to institute a suit to recover a loan advanced by him at any time in the course of two years after the date on which the section comes into force, if he is granted a certificate of registration under S. 5 at any time before the expiration of the said years." Section 9 provides for the maximum rates at which interest may be decreed. Various other sections deal with other matters which the legislature thought fit to provide for in order to achieve the object of the Act which, according to the preamble, is to regulate money-lending transactions and to grant relief to debtors in the State of Orissa. 7. Rule 1, Cl. (c), of the Orissa Money-Lenders Rules, 1939, defines maximum capital to mean the highest total amount of the capital sums which may remain invested in a money-lending business on any day during the period of the registration certificate. Rule 3, Cl. (iii), requires every application for the registration of a money-lender to mention the maximum capital for which the certificate is wanted. Rule 4 lays down the registration fees payable and fixes the fees according to the maximum capital in respect of which an application for such certificate is made. Rule 5 provides that registration certificate would be in Form III and that during the currency of a registration certificate application may be made for a registration certificate of a higher denomination and the provisions of Rr. 3 to 5 shall, as far as may be, apply to it, credit being given to the registration fee already paid by the applicant. 8. The question for decision in this case is practically the same as came up for decision before this Court in Sant Saranlal v. Parsuram Sahu, Civil Appeal No. 248 of 1964: (AIR 1966 SC 1852 ), judgment in which has been delivered today. The relevant provisions of the Bihar Money-Lenders Act, 1938 and the Bihar Money-Lenders (Regulation of Transaction) Act, 1938 are practically similar to the relevant provisions of the Orissa Act mentioned above. What we have said in that case appropriately covers the contentions of the parties in this case. We do not, therefore, consider it necessary to repeat the discussion of the various contentions in this case. 9.We hold that in the absence of any specific provision in the Act in this case providing for the fixing of the maximum capital which a money-lender can invest in money-lending business, it was not open to the State Government to frame a rule in that regard and that the rules framed by it about mentioning, in the application, the maximum capital for which the registration certificate was wanted and the mention in the certificate that the amount of the maximum capital for which the certificate is granted, do not lead to the conclusion that the registration of the money-lender will become void if he exceeds the limit of the maximum capital laid down in the registration certificate. 10. We do not consider it necessary now to decide the other point raised with respect to the retrospective operation of the registration certificates of higher denomination obtained during the currency of a registration certificate.
### Response:
1
### Explanation:
9.We hold that in the absence of any specific provision in the Act in this case providing for the fixing of the maximum capital which a money-lender can invest in money-lending business, it was not open to the State Government to frame a rule in that regard and that the rules framed by it about mentioning, in the application, the maximum capital for which the registration certificate was wanted and the mention in the certificate that the amount of the maximum capital for which the certificate is granted, do not lead to the conclusion that the registration of the money-lender will become void if he exceeds the limit of the maximum capital laid down in the registration certificate10. We do not consider it necessary now to decide the other point raised with respect to the retrospective operation of the registration certificates of higher denomination obtained during the currency of a registration certificate8. The question for decision in this case is practically the same as came up for decision before this Court in Sant Saranlal v. Parsuram Sahu, Civil Appeal No. 248 of 1964: (AIR 1966 SC 1852 ), judgment in which has been delivered today. The relevant provisions of the Bihars Act, 1938 and the Bihars (Regulation of Transaction) Act, 1938 are practically similar to the relevant provisions of the Orissa Act mentioned above. What we have said in that case appropriately covers the contentions of the parties in this case. We do not, therefore, consider it necessary to repeat the discussion of the various contentions in this case.
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Delhi Cloth and General Mills Company Limited and Another Vs. Union of India and Another | 1. A limited argument is addressed in this appeal that impugns the judgment and order of a Division Bench of the High Court of Rajasthan 2. The appellants manufacture type yarn cord and fabric for which purpose they import tyre cord grade wood pulp from the United States of America. The appellants were called upon to pay additional duty thereon under the provisions of Section 3 of the Customs Tariff Act, 1975 3. Among other contentions raised by the appellants was this : The said wood pulp was not produced or manufactured in India. Under the terms of Section 3 additional duty had, therefore, to be calculated on the basis of the excise duty that would be leviable on the class or description of articles to which the said wood pulp belonged. There was no entry in the Tariff that related to an article of the like of the said wood pulp. Entry 68, being a residuary entry relating to no class or description of goods, did not apply. No additional duty was, therefore, leviable on the said wood pulp 4. The said contention was rejected by the Assistant Collector and by the High Court in the writ petition filed by the appellants 5. It is the only contention raised before us 6. Section 3 of the Customs Tariff Act, so far as it is relevant, reads thus "3. Levy of additional duty equal to excise duty. - (1) Any article which is imported into India shall, in addition, be liable to a duty (hereafter in this section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported articleExplanation. - In this section, the expression the excise duty for the time being leviable on a like article if produced or manufactured in India means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India or, if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs, and where such duty is leviable at different rates, the highest duty." 7. It is the Explanation which is important. The expression "the excise duty for the time being leviable on a like article if produced or manufactured in India" used in the body of sub-section (1) is explained to mean the excise duty for the time being in force (a) which would be leviable on a like article if produced or manufactured in India, or (b) if a like article is not produced or manufactured in India, the excise duty that would be leviable on the class or description of articles to which the imported article belongs 8. Where a like article is not produced or manufactured in India additional duty is required to be levied on the imported article upon the basis of the excise duty that is leviable on the class or description of articles to which the imported article belongs. Articles which are not elsewhere described, falling under the residuary Entry 68, form a class by themselves. Hence, if a like article is not described in the tariff, additional duty is leviable on the imported article upon the basis of the levy of excise duty under the provisions of Entry 68 9. The only contention raised before us is rejected | 0[ds]8. Where a like article is not produced or manufactured in India additional duty is required to be levied on the imported article upon the basis of the excise duty that is leviable on the class or description of articles to which the imported article belongs. Articles which are not elsewhere described, falling under the residuary Entry 68, form a class by themselves. Hence, if a like article is not described in the tariff, additional duty is leviable on the imported article upon the basis of the levy of excise duty under the provisions of Entry 689. The only contention raised before us is rejected | 0 | 674 | 117 | ### 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:
1. A limited argument is addressed in this appeal that impugns the judgment and order of a Division Bench of the High Court of Rajasthan 2. The appellants manufacture type yarn cord and fabric for which purpose they import tyre cord grade wood pulp from the United States of America. The appellants were called upon to pay additional duty thereon under the provisions of Section 3 of the Customs Tariff Act, 1975 3. Among other contentions raised by the appellants was this : The said wood pulp was not produced or manufactured in India. Under the terms of Section 3 additional duty had, therefore, to be calculated on the basis of the excise duty that would be leviable on the class or description of articles to which the said wood pulp belonged. There was no entry in the Tariff that related to an article of the like of the said wood pulp. Entry 68, being a residuary entry relating to no class or description of goods, did not apply. No additional duty was, therefore, leviable on the said wood pulp 4. The said contention was rejected by the Assistant Collector and by the High Court in the writ petition filed by the appellants 5. It is the only contention raised before us 6. Section 3 of the Customs Tariff Act, so far as it is relevant, reads thus "3. Levy of additional duty equal to excise duty. - (1) Any article which is imported into India shall, in addition, be liable to a duty (hereafter in this section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported articleExplanation. - In this section, the expression the excise duty for the time being leviable on a like article if produced or manufactured in India means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India or, if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs, and where such duty is leviable at different rates, the highest duty." 7. It is the Explanation which is important. The expression "the excise duty for the time being leviable on a like article if produced or manufactured in India" used in the body of sub-section (1) is explained to mean the excise duty for the time being in force (a) which would be leviable on a like article if produced or manufactured in India, or (b) if a like article is not produced or manufactured in India, the excise duty that would be leviable on the class or description of articles to which the imported article belongs 8. Where a like article is not produced or manufactured in India additional duty is required to be levied on the imported article upon the basis of the excise duty that is leviable on the class or description of articles to which the imported article belongs. Articles which are not elsewhere described, falling under the residuary Entry 68, form a class by themselves. Hence, if a like article is not described in the tariff, additional duty is leviable on the imported article upon the basis of the levy of excise duty under the provisions of Entry 68 9. The only contention raised before us is rejected
### Response:
0
### Explanation:
8. Where a like article is not produced or manufactured in India additional duty is required to be levied on the imported article upon the basis of the excise duty that is leviable on the class or description of articles to which the imported article belongs. Articles which are not elsewhere described, falling under the residuary Entry 68, form a class by themselves. Hence, if a like article is not described in the tariff, additional duty is leviable on the imported article upon the basis of the levy of excise duty under the provisions of Entry 689. The only contention raised before us is rejected
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Eurobond Industries Private Limited Vs. Euro Panel Products Private Limited & Another | hardware; pipes and tubes of metal; safes; goods of common metal not included in other classes; ores.22. Perusal of the agreement would reveal that the agreement specifically records that the Defendant is in the business of manufacturing of Aluminum Panel Sheets. The licence, which is given by the Plaintiff No.2 for using the name EURO is solely in connection of the activities of the user. The activities of the user i.e. Defendant, of manufacturing Aluminum Panel Sheets are referable to only Class 6 of the Schedule IV. In that view of the matter, we find that the contention of the Appellant that the licence was only for the word EURO and not for the word/label EUROBOND, in our consideration is without substance. The licence agreement specifically provides granting licence to use the word EURO. It is only because of the licence given by the Plaintiff No.2 under the said agreement to use the word EURO, the Defendant could have incorporated the company under the name and style of EUROBOND.23. The licence further provides for termination of the agreement, if any of the eventualities mentioned in the agreement occur. Undisputedly, as per the agreement, the Plaintiff No.2 has reserved a sole and unfettered discretion to terminate the agreement notwithstanding anything contained in any part of the agreement, in the event the Plaintiff No.2 finds any change in the shareholding pattern or ownership pattern of the user or changes in voting powers of shares, or other change prejudicial to the interest of the proprietor or one or more companies to whom a similar name licence has been granted. The agreement further provides, as to what shall be consequences upon termination of the agreement. It provides that on the agreement being terminated, the Defendant would not be in a position to use the word EURO and will have to change its corporate name, trading style or trade name in such manner as to delete therefrom the name EURO.24. The Full Bench of this Court in the case of Lupin Ltd. Vs. Johnson and Johnson (2015(1) Mh.L.J. 501), had an occasion to consider the situation when an injunction is sought against a registered proprietor of the trademark. It will be relevant to refer to the following observations:55. We are, therefore, of the view that while the registered proprietor of a trade mark would ordinarily be entitled to finding of the Civil Court in its favour that the trade mark registered in its name is prima facie valid, the jurisdiction of the Court is not barred for considering the plea of the Defendant at the interlocutory stage that the registration in the Plaintiffs favour is so fraudulent or is so apparently invalid that the Court should not grant an injunction in favour of the Plaintiff. Of course, a very heavy burden lies on the Defendant to rebut the strong presumption in favour of the Plaintiff at the interlocutory stage. The Civil Court obviously cannot give any final finding on this question as the jurisdiction to give such final finding is conferred on Appellate Board in the rectification proceedings, but it is not possible to accept the Plaintiffs contention that at the interlocutory stage the jurisdiction of the Civil Court is completely barred.25. Perusal of the aforesaid observations would reveal that the Full Bench has held that while the registered proprietor of a trade mark would ordinarily be entitled to finding of the Civil Court in its favour, that the trademark registered in its name is primafacie valid, the jurisdiction of the Court is not barred for considering the plea of the Defendant at the interlocutory stage, that the registration in the Plaintiffs favour is so fraudulent or so apparently invalid that the Court should not grant an injunction in favour of the Plaintiff. It has further been held that a very heavy burden lies on the Defendant to rebut the strong presumption in favour of the Plaintiff at the interlocutory stage. It has further been observed that the Civil Court cannot give final finding on this question as the jurisdiction to give such final finding is conferred on the Appellate Board in the rectification proceedings.26. It could thus be seen that, a registered proprietor of a trademark would ordinarily be entitled to finding of the Civil Court in its favour, that the trademark registered in its name is primafacie valid. Only in case where the Defendant is in position to establish that the registration in the Plaintiffs favour, is so fraudulent or is so apparently invalid, the Court would refuse to grant an injunction in favour of the proprietor of the registered trademark. For proving the same, a heavy burden lies on the Defendant. Undisputedly, the case as is sought to be made out by the Defendant does not fall in the aforesaid category. In that view of the matter, we find that no inference would be warranted in the finding of the learned Single Judge that the Plaintiffs are entitled to injunction against the Defendant from using its registered trademark.27. Perusal of the impugned order would further reveal, that the learned Single Judge has granted sufficient period of three months to the Defendant to change its corporate name and trading style and also to dispose of the existing stock of goods bearing the trademark EUROBOND.28. Insofar as clause (iii) of the operative part is concerned, we find that learned Senior Counsel for the Defendant is justified in contending that the learned Single Judge could not have granted injunction in terms of clause (iii). For granting an order of injunction, when the action is based on passing of, various factors, which have been enumerated hereinabove are required to be taken into consideration. However, we find that there is no discussion in the order of the learned Single Judge, as to on what basis the injunction has been granted.29. In that view of the matter, we find that no interference is warranted with clauses (i), (ii), (iv) and (v) of the operative part of the order. | 1[ds]It is equally not permissible to interfere with the exercise of discretion under appeal solely on the ground that, if the appellate court had considered the matter at the trial stage, it would have come to a different conclusion. It has further been held that if the discretion has been exercised by the trial court reasonably and in a judicial manner, the fact that the appellate court would have taken a different view, may not justify interference with the trial courts exercise ofthat view of the matter, we find that the contention of the Appellant that the licence was only for the word EURO and not for the word/label EUROBOND, in our consideration is without substance. The licence agreement specifically provides granting licence to use the word EURO. It is only because of the licence given by the Plaintiff No.2 under the said agreement to use the word EURO, the Defendant could have incorporated the company under the name and style ofthat view of the matter, we find that no inference would be warranted in the finding of the learned Single Judge that the Plaintiffs are entitled to injunction against the Defendant from using its registered trademark.27. Perusal of the impugned order would further reveal, that the learned Single Judge has granted sufficient period of three months to the Defendant to change its corporate name and trading style and also to dispose of the existing stock of goods bearing the trademark EUROBOND.28. Insofar as clause (iii) of the operative part is concerned, we find that learned Senior Counsel for the Defendant is justified in contending that the learned Single Judge could not have granted injunction in terms of clause (iii). For granting an order of injunction, when the action is based on passing of, various factors, which have been enumerated hereinabove are required to be taken into consideration. However, we find that there is no discussion in the order of the learned Single Judge, as to on what basis the injunction has been granted.29. In that view of the matter, we find that no interference is warranted with clauses (i), (ii), (iv) and (v) of the operative part of the order. | 1 | 5,484 | 404 | ### 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:
hardware; pipes and tubes of metal; safes; goods of common metal not included in other classes; ores.22. Perusal of the agreement would reveal that the agreement specifically records that the Defendant is in the business of manufacturing of Aluminum Panel Sheets. The licence, which is given by the Plaintiff No.2 for using the name EURO is solely in connection of the activities of the user. The activities of the user i.e. Defendant, of manufacturing Aluminum Panel Sheets are referable to only Class 6 of the Schedule IV. In that view of the matter, we find that the contention of the Appellant that the licence was only for the word EURO and not for the word/label EUROBOND, in our consideration is without substance. The licence agreement specifically provides granting licence to use the word EURO. It is only because of the licence given by the Plaintiff No.2 under the said agreement to use the word EURO, the Defendant could have incorporated the company under the name and style of EUROBOND.23. The licence further provides for termination of the agreement, if any of the eventualities mentioned in the agreement occur. Undisputedly, as per the agreement, the Plaintiff No.2 has reserved a sole and unfettered discretion to terminate the agreement notwithstanding anything contained in any part of the agreement, in the event the Plaintiff No.2 finds any change in the shareholding pattern or ownership pattern of the user or changes in voting powers of shares, or other change prejudicial to the interest of the proprietor or one or more companies to whom a similar name licence has been granted. The agreement further provides, as to what shall be consequences upon termination of the agreement. It provides that on the agreement being terminated, the Defendant would not be in a position to use the word EURO and will have to change its corporate name, trading style or trade name in such manner as to delete therefrom the name EURO.24. The Full Bench of this Court in the case of Lupin Ltd. Vs. Johnson and Johnson (2015(1) Mh.L.J. 501), had an occasion to consider the situation when an injunction is sought against a registered proprietor of the trademark. It will be relevant to refer to the following observations:55. We are, therefore, of the view that while the registered proprietor of a trade mark would ordinarily be entitled to finding of the Civil Court in its favour that the trade mark registered in its name is prima facie valid, the jurisdiction of the Court is not barred for considering the plea of the Defendant at the interlocutory stage that the registration in the Plaintiffs favour is so fraudulent or is so apparently invalid that the Court should not grant an injunction in favour of the Plaintiff. Of course, a very heavy burden lies on the Defendant to rebut the strong presumption in favour of the Plaintiff at the interlocutory stage. The Civil Court obviously cannot give any final finding on this question as the jurisdiction to give such final finding is conferred on Appellate Board in the rectification proceedings, but it is not possible to accept the Plaintiffs contention that at the interlocutory stage the jurisdiction of the Civil Court is completely barred.25. Perusal of the aforesaid observations would reveal that the Full Bench has held that while the registered proprietor of a trade mark would ordinarily be entitled to finding of the Civil Court in its favour, that the trademark registered in its name is primafacie valid, the jurisdiction of the Court is not barred for considering the plea of the Defendant at the interlocutory stage, that the registration in the Plaintiffs favour is so fraudulent or so apparently invalid that the Court should not grant an injunction in favour of the Plaintiff. It has further been held that a very heavy burden lies on the Defendant to rebut the strong presumption in favour of the Plaintiff at the interlocutory stage. It has further been observed that the Civil Court cannot give final finding on this question as the jurisdiction to give such final finding is conferred on the Appellate Board in the rectification proceedings.26. It could thus be seen that, a registered proprietor of a trademark would ordinarily be entitled to finding of the Civil Court in its favour, that the trademark registered in its name is primafacie valid. Only in case where the Defendant is in position to establish that the registration in the Plaintiffs favour, is so fraudulent or is so apparently invalid, the Court would refuse to grant an injunction in favour of the proprietor of the registered trademark. For proving the same, a heavy burden lies on the Defendant. Undisputedly, the case as is sought to be made out by the Defendant does not fall in the aforesaid category. In that view of the matter, we find that no inference would be warranted in the finding of the learned Single Judge that the Plaintiffs are entitled to injunction against the Defendant from using its registered trademark.27. Perusal of the impugned order would further reveal, that the learned Single Judge has granted sufficient period of three months to the Defendant to change its corporate name and trading style and also to dispose of the existing stock of goods bearing the trademark EUROBOND.28. Insofar as clause (iii) of the operative part is concerned, we find that learned Senior Counsel for the Defendant is justified in contending that the learned Single Judge could not have granted injunction in terms of clause (iii). For granting an order of injunction, when the action is based on passing of, various factors, which have been enumerated hereinabove are required to be taken into consideration. However, we find that there is no discussion in the order of the learned Single Judge, as to on what basis the injunction has been granted.29. In that view of the matter, we find that no interference is warranted with clauses (i), (ii), (iv) and (v) of the operative part of the order.
### Response:
1
### Explanation:
It is equally not permissible to interfere with the exercise of discretion under appeal solely on the ground that, if the appellate court had considered the matter at the trial stage, it would have come to a different conclusion. It has further been held that if the discretion has been exercised by the trial court reasonably and in a judicial manner, the fact that the appellate court would have taken a different view, may not justify interference with the trial courts exercise ofthat view of the matter, we find that the contention of the Appellant that the licence was only for the word EURO and not for the word/label EUROBOND, in our consideration is without substance. The licence agreement specifically provides granting licence to use the word EURO. It is only because of the licence given by the Plaintiff No.2 under the said agreement to use the word EURO, the Defendant could have incorporated the company under the name and style ofthat view of the matter, we find that no inference would be warranted in the finding of the learned Single Judge that the Plaintiffs are entitled to injunction against the Defendant from using its registered trademark.27. Perusal of the impugned order would further reveal, that the learned Single Judge has granted sufficient period of three months to the Defendant to change its corporate name and trading style and also to dispose of the existing stock of goods bearing the trademark EUROBOND.28. Insofar as clause (iii) of the operative part is concerned, we find that learned Senior Counsel for the Defendant is justified in contending that the learned Single Judge could not have granted injunction in terms of clause (iii). For granting an order of injunction, when the action is based on passing of, various factors, which have been enumerated hereinabove are required to be taken into consideration. However, we find that there is no discussion in the order of the learned Single Judge, as to on what basis the injunction has been granted.29. In that view of the matter, we find that no interference is warranted with clauses (i), (ii), (iv) and (v) of the operative part of the order.
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Godavari Sugar Mills Ltd Vs. Kepargaon Taluka Sakhar Kamgarsabha, Sakarwadi | defines an "industrial matter" as meaning any matter relating to employment, work, wages. hours of work, privileges, rights or duties of employers or employees, or the mode, terms and conditions of employment. Mr. Pathak urges that the definition of "industrial matter" contravenes the fundamental right guaranteed under Art 19(1)(g), when it provides that the mode of employment is also included within it. Reference is also made to S. 3(17) which defines an "industrial dispute" as any dispute or difference which is connected with any industrial matter. Mr. Pathak therefore urges that reading the two definitions together the industrial court is given the power to decide dispute as to the mode of employment and that contravenes the fundamental right guaranteed under Art. 19(1)(g), for it enables an industrial court to adjudicate on the mode of employment and thus interfere with the right of the employer to carry on his trade as he likes subject to reasonable restrictions. Now assuming that the mode of employment used in S. 3(18) includes such questions as abolition of contract labour, the question would still be whether a provision which enables an industrial court to adjudicate on the question whether contract labour should or should not be abolished is an unreasonable restriction on the employers right to carry on his trade. We cannot see how the fact that power is given to the industrial court, which is a quasi-judicial tribunal to decide whether contract labour should be abolished or not would make the definition of "industrial matter" in so far as it refers to the mode of employment, an unreasonable restriction on the fundamental right of the employer to carry on trade. The matter being entrusted to a quasi-judicial tribunal would be decided after giving both parties full opportunity of presenting their case and after considering whether in the circumstances of a particular case the restriction on the mode of employment is a reasonable restriction or not. The tribunal would always go into the reasonableness of the matter and if it comes to the conclusion that the mode of employment desired by labour is not reasonable it will not allow it; it is only when it comes to the conclusion that the mode of employment desired by labour in a particular case is a reasonable restriction that it will insist on that particular mode of employment being used. Take, for example, the case of contract labour itself. The tribunal will have to go into the facts of each case. If it comes to the conclusion that on the facts the employment of contract labour is reasonable and thus doing away with it would be an unreasonable restriction on the right of the employer to carry on trade, it will permit contract labour to be carried on. On the other hand if it comes to the conclusion that employment of contract labour is unreasonable in the circumstances of the case before it, it will hold that it should be abolished, the reason being that its abolition would be a reasonable restriction in the circumstances. Therefore, the decision whether the mode of employment in a particular case is a reasonable restriction or unreasonable one is in the hands of a quasi-judicial tribunal. In the circumstances it cannot be said that by providing in S. 3(18) that an "industrial matter" includes also the mode of employment, there is any contravention of the fundamental right of the employer to carry on trade. If the argument on behalf of the appellant were to be accepted it would mean that judicial and quasi-judicial decisions could be unreasonable restrictions on fundamental rights and this the Constitution does not envisage at all. We are therefore of opinion that this contention also fails.6. Finally, Mr. Pathak draws our attention to Ss. 3(13) and 3(14) of the Act and submits that the appellant never said that contract labour employed in its mills was not in its employment. Section 3(13) defines the word "employee" and includes in it any person employed by a contractor to do any work for him in the execution of a contract with an employer within the meaning of sub-cl. (e) of cl. (14). Section 3(14) defines the word "employer" in an inclusive manner and includes"where the owner of any undertaking in the course of or for the purpose of conducting the undertaking contracts with any person for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the undertaking, the owner of the undertaking".It is urged that in view of these definitions, the employees of the contractors are the employees of the mills and the mills are the employers of these employees of the contractors. Therefore, Mr. Pathak urges that there is no necessity of abolishing contract labour and that the industrial court may, if it so chooses, give the same wages and hours of work and rest intervals and other terms and conditions of employment to the employees of the contractors as are provided for comparable direct employees of the appellant and in such circumstances it would not be necessary to abolish the contract system so long as the employees of contractors are to be in the same position as the direct employees of the appellant as to their terms and conditions of service. This was not however the manner in which the case was contested before the industrial court or the appellate tribunal. All that we need therefore say is that when the matter goes back before the industrial court as directed by the appellate tribunal, the industrial court may take this submission of the appellant into account and may consider whether it is necessary to abolish the contract system, provided the appellant is able to assure the industrial court that employees of the contractors who are deemed to be its employees within the meaning of S. 3(13) and S. 3(14) would have the full benefit of the same terms and conditions of service as its comparable direct employees. | 0[ds]We do not think it necessary for purposes of this appeal to consider what would be the ambit of employment as used in item (6) of Sch. III. The scheme of the Act shows that under Ss. 71 and 72 the jurisdiction of a labour court and an industrial court is concurrent with respect to any matters which the State Government may deem fit to refer to them; but under S. 73A reference by a registered union which is a representative of employees and which is also an approved union can only be made to an industrial court, subject to the proviso that no such dispute can be referred to an industrial court where under the provisions of the Act it is required to be referred to the labour court for its decision. Section 78 of the Act provides for jurisdiction of labour courts and matters specified in Sch. II are not within their ordinary jurisdiction. Therefore, when a registered union wishes to refer any matter which is contained in Sch. II of the Act such reference can be made by it only to the industrial court. It follows in consequence that whatever may be the ambit of the word "employment" used in item (6) of Sch. III, if any matter is covered by Sch. II it can only be referred to the industrial court under S. 73A. Now the question whether contract labour should be abolished (on the assumption that contract labour is not in the employ of the mills) immediately raises questions relating to permanent increase in the number of persons employed. Their wages including the period and mode of payment,. hours of work and rest intervals, which are items (2), (9) and (10) of Sch. II. Therefore, a question relating to abolition of contract labour is so inextricably mixed up with the question of permanent increase in the number of persons employed, their wages, hours of work and rest intervals that any dispute relating to contract labour would inevitably raise questions covered by Sch. II. Therefore, a dispute relating to contract labour if it is to be referred under S. 73A by registered union can only be referred to an industrial court as it immediately raises matters contained in items (2), (9) and (10) of Sch. II. Mr. Pathak urges, however, that matters relating to permanent increase in the number of persons employed due to the abolition of contract labour, their wages, hours of work and rest intervals were not really disputed at all by the appellant. It appears that in the written statements of the appellant, these point were not raised; but the decision of the appellate tribunal, shows that one of the contentions raised before it by the sugar-mills was that the workmen concerned were not employees of the sugar mills. Therefore, as soon as this contention is raised a dispute as to permanent increase in the number of persons employed, their wages, hours of work and rest intervals would immediately arise. It must, therefore, be held that a question relating to the abolition of contract labour inevitably raises a dispute with respect to these three items contained in Sch. II. In the circumstances we are of opinion that the industrial court had jurisdiction to deal with the matter. In particular, we may point out that in their petitions the unions had raised at least the question as to the permanent increase in the number of persons employed and that would immediately bring in item (2) of Sch. II. It is true that the question of permanent increase in the number of persons employed, their wages, hours of work and rest intervals would only arise if contract labour is to be abolished; but in our opinion these are matters so inextricably mixed up with the question relating to abolition of contract labour that they must be held to be in dispute as soon as the dispute is raised about the abolition of contract labour, (assuming always that the employer does not accept contract labour as part of its labour force).The contention about jurisdiction must therefore be rejected.5. This brings us to the second contention raised by Mr. Pathak. He bases his argument in this behalf on S. 3(18), which defines an "industrial matter" as meaning any matter relating to employment, work, wages. hours of work, privileges, rights or duties of employers or employees, or the mode, terms and conditions of employment. Mr. Pathak urges that the definition of "industrial matter" contravenes the fundamental right guaranteed under Art 19(1)(g), when it provides that the mode of employment is also included within it. Reference is also made to S. 3(17) which defines an "industrial dispute" as any dispute or difference which is connected with any industrial matter. Mr. Pathak therefore urges that reading the two definitions together the industrial court is given the power to decide dispute as to the mode of employment and that contravenes the fundamental right guaranteed under Art. 19(1)(g), for it enables an industrial court to adjudicate on the mode of employment and thus interfere with the right of the employer to carry on his trade as he likes subject to reasonable restrictions. Now assuming that the mode of employment used in S. 3(18) includes such questions as abolition of contract labour, the question would still be whether a provision which enables an industrial court to adjudicate on the question whether contract labour should or should not be abolished is an unreasonable restriction on the employers right to carry on his trade. We cannot see how the fact that power is given to the industrial court, which is a quasi-judicial tribunal to decide whether contract labour should be abolished or not would make the definition of "industrial matter" in so far as it refers to the mode of employment, an unreasonable restriction on the fundamental right of the employer to carry on trade. The matter being entrusted to a quasi-judicial tribunal would be decided after giving both parties full opportunity of presenting their case and after considering whether in the circumstances of a particular case the restriction on the mode of employment is a reasonable restriction or not. The tribunal would always go into the reasonableness of the matter and if it comes to the conclusion that the mode of employment desired by labour is not reasonable it will not allow it; it is only when it comes to the conclusion that the mode of employment desired by labour in a particular case is a reasonable restriction that it will insist on that particular mode of employment being used. Take, for example, the case of contract labour itself. The tribunal will have to go into the facts of each case. If it comes to the conclusion that on the facts the employment of contract labour is reasonable and thus doing away with it would be an unreasonable restriction on the right of the employer to carry on trade, it will permit contract labour to be carried on. On the other hand if it comes to the conclusion that employment of contract labour is unreasonable in the circumstances of the case before it, it will hold that it should be abolished, the reason being that its abolition would be a reasonable restriction in the circumstances. Therefore, the decision whether the mode of employment in a particular case is a reasonable restriction or unreasonable one is in the hands of a quasi-judicial tribunal. In the circumstances it cannot be said that by providing in S. 3(18) that an "industrial matter" includes also the mode of employment, there is any contravention of the fundamental right of the employer to carry on trade. If the argument on behalf of the appellant were to be accepted it would mean that judicial and quasi-judicial decisions could be unreasonable restrictions on fundamental rights and this the Constitution does not envisage at all. We are therefore of opinion that this contention alsois urged that in view of these definitions, the employees of the contractors are the employees of the mills and the mills are the employers of these employees of the contractors. Therefore, Mr. Pathak urges that there is no necessity of abolishing contract labour and that the industrial court may, if it so chooses, give the same wages and hours of work and rest intervals and other terms and conditions of employment to the employees of the contractors as are provided for comparable direct employees of the appellant and in such circumstances it would not be necessary to abolish the contract system so long as the employees of contractors are to be in the same position as the direct employees of the appellant as to their terms and conditions of service. This was not however the manner in which the case was contested before the industrial court or the appellate tribunal. All that we need therefore say is that when the matter goes back before the industrial court as directed by the appellate tribunal, the industrial court may take this submission of the appellant into account and may consider whether it is necessary to abolish the contract system, provided the appellant is able to assure the industrial court that employees of the contractors who are deemed to be its employees within the meaning of S. 3(13) and S. 3(14) would have the full benefit of the same terms and conditions of service as its comparable direct employees. | 0 | 2,940 | 1,743 | ### Instruction:
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defines an "industrial matter" as meaning any matter relating to employment, work, wages. hours of work, privileges, rights or duties of employers or employees, or the mode, terms and conditions of employment. Mr. Pathak urges that the definition of "industrial matter" contravenes the fundamental right guaranteed under Art 19(1)(g), when it provides that the mode of employment is also included within it. Reference is also made to S. 3(17) which defines an "industrial dispute" as any dispute or difference which is connected with any industrial matter. Mr. Pathak therefore urges that reading the two definitions together the industrial court is given the power to decide dispute as to the mode of employment and that contravenes the fundamental right guaranteed under Art. 19(1)(g), for it enables an industrial court to adjudicate on the mode of employment and thus interfere with the right of the employer to carry on his trade as he likes subject to reasonable restrictions. Now assuming that the mode of employment used in S. 3(18) includes such questions as abolition of contract labour, the question would still be whether a provision which enables an industrial court to adjudicate on the question whether contract labour should or should not be abolished is an unreasonable restriction on the employers right to carry on his trade. We cannot see how the fact that power is given to the industrial court, which is a quasi-judicial tribunal to decide whether contract labour should be abolished or not would make the definition of "industrial matter" in so far as it refers to the mode of employment, an unreasonable restriction on the fundamental right of the employer to carry on trade. The matter being entrusted to a quasi-judicial tribunal would be decided after giving both parties full opportunity of presenting their case and after considering whether in the circumstances of a particular case the restriction on the mode of employment is a reasonable restriction or not. The tribunal would always go into the reasonableness of the matter and if it comes to the conclusion that the mode of employment desired by labour is not reasonable it will not allow it; it is only when it comes to the conclusion that the mode of employment desired by labour in a particular case is a reasonable restriction that it will insist on that particular mode of employment being used. Take, for example, the case of contract labour itself. The tribunal will have to go into the facts of each case. If it comes to the conclusion that on the facts the employment of contract labour is reasonable and thus doing away with it would be an unreasonable restriction on the right of the employer to carry on trade, it will permit contract labour to be carried on. On the other hand if it comes to the conclusion that employment of contract labour is unreasonable in the circumstances of the case before it, it will hold that it should be abolished, the reason being that its abolition would be a reasonable restriction in the circumstances. Therefore, the decision whether the mode of employment in a particular case is a reasonable restriction or unreasonable one is in the hands of a quasi-judicial tribunal. In the circumstances it cannot be said that by providing in S. 3(18) that an "industrial matter" includes also the mode of employment, there is any contravention of the fundamental right of the employer to carry on trade. If the argument on behalf of the appellant were to be accepted it would mean that judicial and quasi-judicial decisions could be unreasonable restrictions on fundamental rights and this the Constitution does not envisage at all. We are therefore of opinion that this contention also fails.6. Finally, Mr. Pathak draws our attention to Ss. 3(13) and 3(14) of the Act and submits that the appellant never said that contract labour employed in its mills was not in its employment. Section 3(13) defines the word "employee" and includes in it any person employed by a contractor to do any work for him in the execution of a contract with an employer within the meaning of sub-cl. (e) of cl. (14). Section 3(14) defines the word "employer" in an inclusive manner and includes"where the owner of any undertaking in the course of or for the purpose of conducting the undertaking contracts with any person for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the undertaking, the owner of the undertaking".It is urged that in view of these definitions, the employees of the contractors are the employees of the mills and the mills are the employers of these employees of the contractors. Therefore, Mr. Pathak urges that there is no necessity of abolishing contract labour and that the industrial court may, if it so chooses, give the same wages and hours of work and rest intervals and other terms and conditions of employment to the employees of the contractors as are provided for comparable direct employees of the appellant and in such circumstances it would not be necessary to abolish the contract system so long as the employees of contractors are to be in the same position as the direct employees of the appellant as to their terms and conditions of service. This was not however the manner in which the case was contested before the industrial court or the appellate tribunal. All that we need therefore say is that when the matter goes back before the industrial court as directed by the appellate tribunal, the industrial court may take this submission of the appellant into account and may consider whether it is necessary to abolish the contract system, provided the appellant is able to assure the industrial court that employees of the contractors who are deemed to be its employees within the meaning of S. 3(13) and S. 3(14) would have the full benefit of the same terms and conditions of service as its comparable direct employees.
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in the number of persons employed and that would immediately bring in item (2) of Sch. II. It is true that the question of permanent increase in the number of persons employed, their wages, hours of work and rest intervals would only arise if contract labour is to be abolished; but in our opinion these are matters so inextricably mixed up with the question relating to abolition of contract labour that they must be held to be in dispute as soon as the dispute is raised about the abolition of contract labour, (assuming always that the employer does not accept contract labour as part of its labour force).The contention about jurisdiction must therefore be rejected.5. This brings us to the second contention raised by Mr. Pathak. He bases his argument in this behalf on S. 3(18), which defines an "industrial matter" as meaning any matter relating to employment, work, wages. hours of work, privileges, rights or duties of employers or employees, or the mode, terms and conditions of employment. Mr. Pathak urges that the definition of "industrial matter" contravenes the fundamental right guaranteed under Art 19(1)(g), when it provides that the mode of employment is also included within it. Reference is also made to S. 3(17) which defines an "industrial dispute" as any dispute or difference which is connected with any industrial matter. Mr. Pathak therefore urges that reading the two definitions together the industrial court is given the power to decide dispute as to the mode of employment and that contravenes the fundamental right guaranteed under Art. 19(1)(g), for it enables an industrial court to adjudicate on the mode of employment and thus interfere with the right of the employer to carry on his trade as he likes subject to reasonable restrictions. Now assuming that the mode of employment used in S. 3(18) includes such questions as abolition of contract labour, the question would still be whether a provision which enables an industrial court to adjudicate on the question whether contract labour should or should not be abolished is an unreasonable restriction on the employers right to carry on his trade. We cannot see how the fact that power is given to the industrial court, which is a quasi-judicial tribunal to decide whether contract labour should be abolished or not would make the definition of "industrial matter" in so far as it refers to the mode of employment, an unreasonable restriction on the fundamental right of the employer to carry on trade. The matter being entrusted to a quasi-judicial tribunal would be decided after giving both parties full opportunity of presenting their case and after considering whether in the circumstances of a particular case the restriction on the mode of employment is a reasonable restriction or not. The tribunal would always go into the reasonableness of the matter and if it comes to the conclusion that the mode of employment desired by labour is not reasonable it will not allow it; it is only when it comes to the conclusion that the mode of employment desired by labour in a particular case is a reasonable restriction that it will insist on that particular mode of employment being used. Take, for example, the case of contract labour itself. The tribunal will have to go into the facts of each case. If it comes to the conclusion that on the facts the employment of contract labour is reasonable and thus doing away with it would be an unreasonable restriction on the right of the employer to carry on trade, it will permit contract labour to be carried on. On the other hand if it comes to the conclusion that employment of contract labour is unreasonable in the circumstances of the case before it, it will hold that it should be abolished, the reason being that its abolition would be a reasonable restriction in the circumstances. Therefore, the decision whether the mode of employment in a particular case is a reasonable restriction or unreasonable one is in the hands of a quasi-judicial tribunal. In the circumstances it cannot be said that by providing in S. 3(18) that an "industrial matter" includes also the mode of employment, there is any contravention of the fundamental right of the employer to carry on trade. If the argument on behalf of the appellant were to be accepted it would mean that judicial and quasi-judicial decisions could be unreasonable restrictions on fundamental rights and this the Constitution does not envisage at all. We are therefore of opinion that this contention alsois urged that in view of these definitions, the employees of the contractors are the employees of the mills and the mills are the employers of these employees of the contractors. Therefore, Mr. Pathak urges that there is no necessity of abolishing contract labour and that the industrial court may, if it so chooses, give the same wages and hours of work and rest intervals and other terms and conditions of employment to the employees of the contractors as are provided for comparable direct employees of the appellant and in such circumstances it would not be necessary to abolish the contract system so long as the employees of contractors are to be in the same position as the direct employees of the appellant as to their terms and conditions of service. This was not however the manner in which the case was contested before the industrial court or the appellate tribunal. All that we need therefore say is that when the matter goes back before the industrial court as directed by the appellate tribunal, the industrial court may take this submission of the appellant into account and may consider whether it is necessary to abolish the contract system, provided the appellant is able to assure the industrial court that employees of the contractors who are deemed to be its employees within the meaning of S. 3(13) and S. 3(14) would have the full benefit of the same terms and conditions of service as its comparable direct employees.
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K Leelavathy Bai & Ors Vs. P V Gangadharan & Ors | by the executors on 10.1.1964 was an invalid sale. Thus, the suit property was legally available for court sale. 9. On facts, there is no dispute that the testator had originally appointed 3 persons as executors of his Will, and after the relinquishment of his duties as executor by Mr. Paramasivan, still two other executors were left, namely, Smt. Suseela and Mr. E.D. Sadanandan (elder one) who continued to be the joint executors of the Will in question. Under Section 211 of the Act, these two executors became the legal representatives of the deceased testator for all purposes and the properties bequeathed vested in these two executors. Until and unless the said executors assent, the title of the property would not pass on the legatee. (See Sec. 332 of the Act). Of course, in law, by the assent of the executor the title of a specific property would pass on to the legatee and this assent could be verbal, express or implied. (See Sec. 333 of the Act). The appellants want us to infer that such an assent of the executor could be inferred from the Act of elder Sadanandan in executing a possessory mortgage Ex. A-1 in favour of S.V. Sivaramakrishna Iyer by which act the elder Sadanandan had acted as a legatee which conduct is sufficient to infer at least the implied assent of the executor to the transfer of title in favour of the legatees. If so, in the eye of law, title of the property had vested in the legatees. Hence, the property in dispute was available in execution for satisfaction of the decree in O.S. No. 63/56. In our opinion, this pre-supposes the fact that the action of the lone executor would suffice to confer the title of the executors on the legatees. We are unable to agree with this proposition of law. Under Section 211 of the Act the property of the deceased testator vests in all the executors and if there are more than one executor, all of them together became legal representatives of the deceased testator. In such a situation, it is futile to contend that the estate of the deceased testator could be either controlled or represented by one of the legal representatives of the deceased to the exclusion of other legal representatives. We find support for this conclusion of ours from the judgment of this court, referred to above, which is incidentally a case arising out of the same Will which is involved in this case. The view expressed in that case, though arising out of income-tax proceedings, applies on all fours to the facts of this case also. This Court in that case held : "If there are more than one executor of a deceased person all of them will be his representatives, and for the purpose of section 24B(2), all of them only can represent the estate of the deceased." 10. On facts, there is no dispute that one of the executors, namely, Mrs. Â? Suseela did not join the other executor in execution of Ex. A-1. Hence, the Â? act of elder Sadanandan in executing Ex. A-1 would not in any manner amount to Â? assenting to vesting of the bequeathed property on the legatees because the Â? elder Sadanandan could not have represented the estate independently to the Â? exclusion of other legatee. Any such unilateral act of any single executor the sole executor, Â? when there are more than one executor, would not bind the estate of the Â? deceased. The contention of the appellant based on Section 311 of the Act Â? also, according to us, does not in any way help the case of the appellant. Â? Though Section 311 says that in the absence of any direction to the contrary Â? in the case of several executors, powers of all may be exercised by any one of Â? them but this Section itself says that such exercise of power by one of the Â? executors should be by any one of them who has proved the Will, on the date of Â? execution of Ex. A-1. In this case, the Will in question was not even Â? probated much less proved by elder Sadanandan to attract the enabling Â? provision of Section 311. Therefore, in our opinion, the act of elder Â? Sadanandan cannot be protected under Section 311 of the Act and the said Act Â? cannot be construed as grant of an implied assent as contemplated in Sections Â?37Â?3 Â?Å 332 and 333 of the Act. If this be so, the right of a legatee will remain to Â? be an incohate right in legacy and the executors will continue to have their Â? right under the Will. Therefore, the executors having obtained the probate on Â? 3.1.1963, the sale made by them on 10.1.1964 in favour of the Kerala Transport Â? Co. is valid and is not in any way inhibited or restricted by the attachment Â? order of the executing court dated 27.11.1961 since all the executors were not Â? parties to the execution proceedings nor was there any personal decree against Â? them. If as found by us that the sale of the suit property on 10.1.1964 was Â? valid sale then the said property was not available for court sale. Â? Consequently, by purchasing the property in court sale dated 17.9.1962, the Â? appellants did not acquire any right, title or interest in the suit property.11. In view of our finding that younger Sadanandan had only an incohate right in the suit property, the contention of the appellant that at least to the extent of his share, the court sale should be upheld, cannot also be accepted.12. In view of the finding given by us with regard to the validity of the private sale executed by Smt. Suseela and elder Sadanandan on 10.1.1964 and our consequential finding on the validity of the court sale, the question pertaining to the tenancy does not survive for our consideration. | 0[ds]9. On facts, there is no dispute that the testator had originally appointed 3 persons as executors of his Will, and after the relinquishment of his duties as executor by Mr. Paramasivan, still two other executors were left, namely, Smt. Suseela and Mr. E.D. Sadanandan (elder one) who continued to be the joint executors of the Will in question. Under Section 211 of the Act, these two executors became the legal representatives of the deceased testator for all purposes and the properties bequeathed vested in these two executors. Until and unless the said executors assent, the title of the property would not pass on the legatee. (See Sec. 332 of the Act). Of course, in law, by the assent of the executor the title of a specific property would pass on to the legatee and this assent could be verbal, express or implied. (See Sec. 333 of the Act). The appellants want us to infer that such an assent of the executor could be inferred from the Act of elder Sadanandan in executing a possessory mortgage Ex. A-1 in favour of S.V. Sivaramakrishna Iyer by which act the elder Sadanandan had acted as a legatee which conduct is sufficient to infer at least the implied assent of the executor to the transfer of title in favour of the legatees. If so, in the eye of law, title of the property had vested in the legatees. Hence, the property in dispute was available in execution for satisfaction of the decree in O.S. No. 63/56. In our opinion, this pre-supposes the fact that the action of the lone executor would suffice to confer the title of the executors on the legatees. We are unable to agree with this proposition of law. Under Section 211 of the Act the property of the deceased testator vests in all the executors and if there are more than one executor, all of them together became legal representatives of the deceased testator. In such a situation, it is futile to contend that the estate of the deceased testator could be either controlled or represented by one of the legal representatives of the deceased to the exclusion of other legal representatives. We find support for this conclusion of ours from the judgment of this court, referred to above, which is incidentally a case arising out of the same Will which is involved in this case. The view expressed in that case, though arising out of income-tax proceedings, applies on all fours to the facts of this case also.On facts, there is no dispute that one of the executors, namely, Mrs. Â? Suseela did not join the other executor in execution of Ex. A-1. Hence, the Â? act of elder Sadanandan in executing Ex. A-1 would not in any manner amount to Â? assenting to vesting of the bequeathed property on the legatees because the Â? elder Sadanandan could not have represented the estate independently to the Â? exclusion of other legatee. Any such unilateral act of any single executor the sole executor, Â? when there are more than one executor, would not bind the estate of the Â? deceased. The contention of the appellant based on Section 311 of the Act Â? also, according to us, does not in any way help the case of the appellant. Â? Though Section 311 says that in the absence of any direction to the contrary Â? in the case of several executors, powers of all may be exercised by any one of Â? them but this Section itself says that such exercise of power by one of the Â? executors should be by any one of them who has proved the Will, on the date of Â? execution of Ex. A-1. In this case, the Will in question was not even Â? probated much less proved by elder Sadanandan to attract the enabling Â? provision of Section 311. Therefore, in our opinion, the act of elder Â? Sadanandan cannot be protected under Section 311 of the Act and the said Act Â? cannot be construed as grant of an implied assent as contemplated in Sections Â?37Â?3 Â?Å 332 and 333 of the Act. If this be so, the right of a legatee will remain to Â? be an incohate right in legacy and the executors will continue to have their Â? right under the Will. Therefore, the executors having obtained the probate on Â? 3.1.1963, the sale made by them on 10.1.1964 in favour of the Kerala Transport Â? Co. is valid and is not in any way inhibited or restricted by the attachment Â? order of the executing court dated 27.11.1961 since all the executors were not Â? parties to the execution proceedings nor was there any personal decree against Â? them. If as found by us that the sale of the suit property on 10.1.1964 was Â? valid sale then the said property was not available for court sale. Â? Consequently, by purchasing the property in court sale dated 17.9.1962, the Â? appellants did not acquire any right, title or interest in the suit property.11. In view of our finding that younger Sadanandan had only an incohate right in the suit property, the contention of the appellant that at least to the extent of his share, the court sale should be upheld, cannot also be accepted.12. In view of the finding given by us with regard to the validity of the private sale executed by Smt. Suseela and elder Sadanandan on 10.1.1964 and our consequential finding on the validity of the court sale, the question pertaining to the tenancy does not survive for our consideration. | 0 | 3,143 | 1,065 | ### Instruction:
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by the executors on 10.1.1964 was an invalid sale. Thus, the suit property was legally available for court sale. 9. On facts, there is no dispute that the testator had originally appointed 3 persons as executors of his Will, and after the relinquishment of his duties as executor by Mr. Paramasivan, still two other executors were left, namely, Smt. Suseela and Mr. E.D. Sadanandan (elder one) who continued to be the joint executors of the Will in question. Under Section 211 of the Act, these two executors became the legal representatives of the deceased testator for all purposes and the properties bequeathed vested in these two executors. Until and unless the said executors assent, the title of the property would not pass on the legatee. (See Sec. 332 of the Act). Of course, in law, by the assent of the executor the title of a specific property would pass on to the legatee and this assent could be verbal, express or implied. (See Sec. 333 of the Act). The appellants want us to infer that such an assent of the executor could be inferred from the Act of elder Sadanandan in executing a possessory mortgage Ex. A-1 in favour of S.V. Sivaramakrishna Iyer by which act the elder Sadanandan had acted as a legatee which conduct is sufficient to infer at least the implied assent of the executor to the transfer of title in favour of the legatees. If so, in the eye of law, title of the property had vested in the legatees. Hence, the property in dispute was available in execution for satisfaction of the decree in O.S. No. 63/56. In our opinion, this pre-supposes the fact that the action of the lone executor would suffice to confer the title of the executors on the legatees. We are unable to agree with this proposition of law. Under Section 211 of the Act the property of the deceased testator vests in all the executors and if there are more than one executor, all of them together became legal representatives of the deceased testator. In such a situation, it is futile to contend that the estate of the deceased testator could be either controlled or represented by one of the legal representatives of the deceased to the exclusion of other legal representatives. We find support for this conclusion of ours from the judgment of this court, referred to above, which is incidentally a case arising out of the same Will which is involved in this case. The view expressed in that case, though arising out of income-tax proceedings, applies on all fours to the facts of this case also. This Court in that case held : "If there are more than one executor of a deceased person all of them will be his representatives, and for the purpose of section 24B(2), all of them only can represent the estate of the deceased." 10. On facts, there is no dispute that one of the executors, namely, Mrs. Â? Suseela did not join the other executor in execution of Ex. A-1. Hence, the Â? act of elder Sadanandan in executing Ex. A-1 would not in any manner amount to Â? assenting to vesting of the bequeathed property on the legatees because the Â? elder Sadanandan could not have represented the estate independently to the Â? exclusion of other legatee. Any such unilateral act of any single executor the sole executor, Â? when there are more than one executor, would not bind the estate of the Â? deceased. The contention of the appellant based on Section 311 of the Act Â? also, according to us, does not in any way help the case of the appellant. Â? Though Section 311 says that in the absence of any direction to the contrary Â? in the case of several executors, powers of all may be exercised by any one of Â? them but this Section itself says that such exercise of power by one of the Â? executors should be by any one of them who has proved the Will, on the date of Â? execution of Ex. A-1. In this case, the Will in question was not even Â? probated much less proved by elder Sadanandan to attract the enabling Â? provision of Section 311. Therefore, in our opinion, the act of elder Â? Sadanandan cannot be protected under Section 311 of the Act and the said Act Â? cannot be construed as grant of an implied assent as contemplated in Sections Â?37Â?3 Â?Å 332 and 333 of the Act. If this be so, the right of a legatee will remain to Â? be an incohate right in legacy and the executors will continue to have their Â? right under the Will. Therefore, the executors having obtained the probate on Â? 3.1.1963, the sale made by them on 10.1.1964 in favour of the Kerala Transport Â? Co. is valid and is not in any way inhibited or restricted by the attachment Â? order of the executing court dated 27.11.1961 since all the executors were not Â? parties to the execution proceedings nor was there any personal decree against Â? them. If as found by us that the sale of the suit property on 10.1.1964 was Â? valid sale then the said property was not available for court sale. Â? Consequently, by purchasing the property in court sale dated 17.9.1962, the Â? appellants did not acquire any right, title or interest in the suit property.11. In view of our finding that younger Sadanandan had only an incohate right in the suit property, the contention of the appellant that at least to the extent of his share, the court sale should be upheld, cannot also be accepted.12. In view of the finding given by us with regard to the validity of the private sale executed by Smt. Suseela and elder Sadanandan on 10.1.1964 and our consequential finding on the validity of the court sale, the question pertaining to the tenancy does not survive for our consideration.
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9. On facts, there is no dispute that the testator had originally appointed 3 persons as executors of his Will, and after the relinquishment of his duties as executor by Mr. Paramasivan, still two other executors were left, namely, Smt. Suseela and Mr. E.D. Sadanandan (elder one) who continued to be the joint executors of the Will in question. Under Section 211 of the Act, these two executors became the legal representatives of the deceased testator for all purposes and the properties bequeathed vested in these two executors. Until and unless the said executors assent, the title of the property would not pass on the legatee. (See Sec. 332 of the Act). Of course, in law, by the assent of the executor the title of a specific property would pass on to the legatee and this assent could be verbal, express or implied. (See Sec. 333 of the Act). The appellants want us to infer that such an assent of the executor could be inferred from the Act of elder Sadanandan in executing a possessory mortgage Ex. A-1 in favour of S.V. Sivaramakrishna Iyer by which act the elder Sadanandan had acted as a legatee which conduct is sufficient to infer at least the implied assent of the executor to the transfer of title in favour of the legatees. If so, in the eye of law, title of the property had vested in the legatees. Hence, the property in dispute was available in execution for satisfaction of the decree in O.S. No. 63/56. In our opinion, this pre-supposes the fact that the action of the lone executor would suffice to confer the title of the executors on the legatees. We are unable to agree with this proposition of law. Under Section 211 of the Act the property of the deceased testator vests in all the executors and if there are more than one executor, all of them together became legal representatives of the deceased testator. In such a situation, it is futile to contend that the estate of the deceased testator could be either controlled or represented by one of the legal representatives of the deceased to the exclusion of other legal representatives. We find support for this conclusion of ours from the judgment of this court, referred to above, which is incidentally a case arising out of the same Will which is involved in this case. The view expressed in that case, though arising out of income-tax proceedings, applies on all fours to the facts of this case also.On facts, there is no dispute that one of the executors, namely, Mrs. Â? Suseela did not join the other executor in execution of Ex. A-1. Hence, the Â? act of elder Sadanandan in executing Ex. A-1 would not in any manner amount to Â? assenting to vesting of the bequeathed property on the legatees because the Â? elder Sadanandan could not have represented the estate independently to the Â? exclusion of other legatee. Any such unilateral act of any single executor the sole executor, Â? when there are more than one executor, would not bind the estate of the Â? deceased. The contention of the appellant based on Section 311 of the Act Â? also, according to us, does not in any way help the case of the appellant. Â? Though Section 311 says that in the absence of any direction to the contrary Â? in the case of several executors, powers of all may be exercised by any one of Â? them but this Section itself says that such exercise of power by one of the Â? executors should be by any one of them who has proved the Will, on the date of Â? execution of Ex. A-1. In this case, the Will in question was not even Â? probated much less proved by elder Sadanandan to attract the enabling Â? provision of Section 311. Therefore, in our opinion, the act of elder Â? Sadanandan cannot be protected under Section 311 of the Act and the said Act Â? cannot be construed as grant of an implied assent as contemplated in Sections Â?37Â?3 Â?Å 332 and 333 of the Act. If this be so, the right of a legatee will remain to Â? be an incohate right in legacy and the executors will continue to have their Â? right under the Will. Therefore, the executors having obtained the probate on Â? 3.1.1963, the sale made by them on 10.1.1964 in favour of the Kerala Transport Â? Co. is valid and is not in any way inhibited or restricted by the attachment Â? order of the executing court dated 27.11.1961 since all the executors were not Â? parties to the execution proceedings nor was there any personal decree against Â? them. If as found by us that the sale of the suit property on 10.1.1964 was Â? valid sale then the said property was not available for court sale. Â? Consequently, by purchasing the property in court sale dated 17.9.1962, the Â? appellants did not acquire any right, title or interest in the suit property.11. In view of our finding that younger Sadanandan had only an incohate right in the suit property, the contention of the appellant that at least to the extent of his share, the court sale should be upheld, cannot also be accepted.12. In view of the finding given by us with regard to the validity of the private sale executed by Smt. Suseela and elder Sadanandan on 10.1.1964 and our consequential finding on the validity of the court sale, the question pertaining to the tenancy does not survive for our consideration.
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M/S.Bhagwati Vanaspati Traders Vs. Sr.Superin.Of Post Office,Meerut | the said business. The said provision does not have the effect of converting the proprietary business into a partnership firm. The provisions of Rule 4 of Order XXX have no application to such a suit as by virtue of Order XXX Rule 10 the other provisions of Order XXX are applicable to a suit against the proprietor of proprietary business "insofar as the nature of such case permits". This means that only those provisions of Order XXX can be made applicable to proprietary concern which can be so made applicable keeping in view the nature of the case.” (emphasis is ours) Based on the observations recorded in the aforesaid judgment, the second contention advanced by the learned counsel for the appellant was, that in sum and substance, a sole proprietorship concern allows the fictional use of a trade name on behalf of an individual. It was contended, that truthfully only one individual is the owner of a sole proprietorship concern. As such, according to learned counsel, the name of the sole proprietorship concern, can again be substituted with the name of the sole proprietor. If that is allowed, the NSC purchased by the appellant would strictly conform to the mandate of law. According to learned counsel, it makes no difference whether the individual’s name, or the proprietorship’s name is recorded while purchasing an NSC. It was pointed out, that if the respondent was not agreeable in accepting the trade name, the respondent ought to have corrected the NSC by substituting the name of M/s. Bhagwati Vanaspati Traders with that of its sole proprietor, namely, B.K. Garg. 9. We find merit in the second contention advanced at the hands of the learned counsel for the appellant. It is indeed true, that the NSC was purchased in the name of M/s. Bhagwati Vanaspati Traders. It is also equally true, that M/s. Bhagwati Vanaspati Traders is a sole proprietorship concern of B.K. Garg, and as such, the irregularity committed while issuing the NSC in the name of M/s. Bhagwati Vanaspati Traders, could have easily been corrected by substituting the name of M/s. Bhagwati Vanaspati Traders with that of B.K. Garg. For, in a sole proprietorship concern an individual uses a fictional trade name, in place of his own name. The rigidity adopted by the authorities is clearly ununderstandable. The postal authorities having permitted M/s. Bhagwati Vanaspati Traders to purchase the NSC in the year 1995, could not have legitimately raised a challenge of irregularity after the maturity thereof in the year 2001, specially when the irregularity was curable. Legally, rule 17 of the Post Office Savings Bank General Rules, 1981, would apply only when an applicant is irreregularly allowed something more, than what is contemplated under a scheme. As for instance, if the scheme contemplates an interest of Y% and the certificate issued records the interest of Y+2% as payable on maturity, the certificate holder cannot be deprived of the interest as a whole, on account of the above irregularity. He can only be deprived of 2%, i.e., the excess amount, beyond the permissible interest, contemplated under the scheme. A certificate holder, would have an absolute right, in the above illustration, to claim interest at Y%, i.e., in consonance with the scheme, despite rule 17. Ordinarily, when the authorities have issued a certificate which they could not have issued, they cannot be allowed to enrich themselves, by retaining the deposit made. This may well be possible if the transaction is a sham or wholly illegal. Not so, if the irregularity is curable. In such circumstances, the postal authorities should devise means to regularize the irregularity, if possible. 10. It is not possible for us to deny relief to the appellant, based on the judgments rendered by this Court in Raja Prameeelamma case (supra) and Arulmighu Dhandayadhapaniswamy Thirukoil case (supra), in view of the fact that, the matter was never examined in the perspective determined by us hereinabove. In neither of the two judgments, the amendment of the NSC was sought. The instant proposition of law, was also not projected on behalf of the certificate holders, in the manner expressed above. 11. There was seriously no difficulty at all in the facts and circumstances of the present case, to regularize the defect pointed out, because M/s. Bhagwati Vanaspati Traders, is admittedly the sole proprietorship concern of B.K. Garg. The postal authorities should have solicited the change of the name in the NSC, through a representation by B.K. Garg himself. On receipt of such a representation, the alleged irregularity would have been cured, and the beneficiary of the deposit, would have legitimately reaped the fruits thereof. Rather than adopting the above simple course, the postal authorities chose to strictly and rigidly interpret the terms of the scheme. This resulted in the denial of the legitimate claims of the sole proprietor of the appellant concern, i.e., B.K. Garg, of the investment made by him. In the above view of the matter, we consider it just and appropriate, in exercise of our jurisdiction under Article 142 of the Constitution of India, to direct the Senior Superintendent of Post Offices, Meerut, to correct the NSC issued in the name of M/s. Bhagwati Vanaspati Traders, by substituting the appellant’s name, with that of B.K. Garg. 12. The irregularity having been cured, we hope that B.K. Garg will now be released all the payments due to him, in terms of the order passed by the District Forum. The respondent is accordingly directed to pay to B.K. Garg, the maturity amount of Rs.10,075/- with 12% interest, from the date of maturity, till the date of payment. He would be entitled to Rs.5,000/- towards compensation, as was awarded to him by the District Forum. In addition, we consider it just and appropriate to award him litigation costs of Rs.10,000/-. The entire amount aforementioned, should be released to B.K. Garg, the sole proprietor of M/s. Bhagwati Vanaspati Traders, within one month from the date of receipt of a certified copy of this judgment.13. | 1[ds]It is not possible for us to deny relief to the appellant, based on the judgments rendered by this Court in Raja Prameeelamma case (supra) and Arulmighu Dhandayadhapaniswamy Thirukoil case (supra), in view of the fact that, the matter was never examined in the perspective determined by us hereinabove. In neither of the two judgments, the amendment of the NSC was sought. The instant proposition of law, was also not projected on behalf of the certificate holders, in the manner expressedwas seriously no difficulty at all in the facts and circumstances of the present case, to regularize the defect pointed out, because M/s. Bhagwati Vanaspati Traders, is admittedly the sole proprietorship concern of B.K. Garg. The postal authorities should have solicited the change of the name in the NSC, through a representation by B.K. Garg himself. On receipt of such a representation, the alleged irregularity would have been cured, and the beneficiary of the deposit, would have legitimately reaped the fruits thereof. Rather than adopting the above simple course, the postal authorities chose to strictly and rigidly interpret the terms of the scheme. This resulted in the denial of the legitimate claims of the sole proprietor of the appellant concern, i.e., B.K. Garg, of the investment made by him. In the above view of the matter, we consider it just and appropriate, in exercise of our jurisdiction under Article 142 of the Constitution of India, to direct the Senior Superintendent of Post Offices, Meerut, to correct the NSC issued in the name of M/s. Bhagwati Vanaspati Traders, by substituting thename, with that of B.K.irregularity having been cured, we hope that B.K. Garg will now be released all the payments due to him, in terms of the order passed by the District Forum. The respondent is accordingly directed to pay to B.K. Garg, the maturity amount of Rs.10,075/- with 12% interest, from the date of maturity, till the date of payment. He would be entitled to Rs.5,000/- towards compensation, as was awarded to him by the District Forum. In addition, we consider it just and appropriate to award him litigation costs of Rs.10,000/-. The entire amount aforementioned, should be released to B.K. Garg, the sole proprietor of M/s. Bhagwati Vanaspati Traders, within one month from the date of receipt of a certified copy of this judgment. | 1 | 4,707 | 449 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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the said business. The said provision does not have the effect of converting the proprietary business into a partnership firm. The provisions of Rule 4 of Order XXX have no application to such a suit as by virtue of Order XXX Rule 10 the other provisions of Order XXX are applicable to a suit against the proprietor of proprietary business "insofar as the nature of such case permits". This means that only those provisions of Order XXX can be made applicable to proprietary concern which can be so made applicable keeping in view the nature of the case.” (emphasis is ours) Based on the observations recorded in the aforesaid judgment, the second contention advanced by the learned counsel for the appellant was, that in sum and substance, a sole proprietorship concern allows the fictional use of a trade name on behalf of an individual. It was contended, that truthfully only one individual is the owner of a sole proprietorship concern. As such, according to learned counsel, the name of the sole proprietorship concern, can again be substituted with the name of the sole proprietor. If that is allowed, the NSC purchased by the appellant would strictly conform to the mandate of law. According to learned counsel, it makes no difference whether the individual’s name, or the proprietorship’s name is recorded while purchasing an NSC. It was pointed out, that if the respondent was not agreeable in accepting the trade name, the respondent ought to have corrected the NSC by substituting the name of M/s. Bhagwati Vanaspati Traders with that of its sole proprietor, namely, B.K. Garg. 9. We find merit in the second contention advanced at the hands of the learned counsel for the appellant. It is indeed true, that the NSC was purchased in the name of M/s. Bhagwati Vanaspati Traders. It is also equally true, that M/s. Bhagwati Vanaspati Traders is a sole proprietorship concern of B.K. Garg, and as such, the irregularity committed while issuing the NSC in the name of M/s. Bhagwati Vanaspati Traders, could have easily been corrected by substituting the name of M/s. Bhagwati Vanaspati Traders with that of B.K. Garg. For, in a sole proprietorship concern an individual uses a fictional trade name, in place of his own name. The rigidity adopted by the authorities is clearly ununderstandable. The postal authorities having permitted M/s. Bhagwati Vanaspati Traders to purchase the NSC in the year 1995, could not have legitimately raised a challenge of irregularity after the maturity thereof in the year 2001, specially when the irregularity was curable. Legally, rule 17 of the Post Office Savings Bank General Rules, 1981, would apply only when an applicant is irreregularly allowed something more, than what is contemplated under a scheme. As for instance, if the scheme contemplates an interest of Y% and the certificate issued records the interest of Y+2% as payable on maturity, the certificate holder cannot be deprived of the interest as a whole, on account of the above irregularity. He can only be deprived of 2%, i.e., the excess amount, beyond the permissible interest, contemplated under the scheme. A certificate holder, would have an absolute right, in the above illustration, to claim interest at Y%, i.e., in consonance with the scheme, despite rule 17. Ordinarily, when the authorities have issued a certificate which they could not have issued, they cannot be allowed to enrich themselves, by retaining the deposit made. This may well be possible if the transaction is a sham or wholly illegal. Not so, if the irregularity is curable. In such circumstances, the postal authorities should devise means to regularize the irregularity, if possible. 10. It is not possible for us to deny relief to the appellant, based on the judgments rendered by this Court in Raja Prameeelamma case (supra) and Arulmighu Dhandayadhapaniswamy Thirukoil case (supra), in view of the fact that, the matter was never examined in the perspective determined by us hereinabove. In neither of the two judgments, the amendment of the NSC was sought. The instant proposition of law, was also not projected on behalf of the certificate holders, in the manner expressed above. 11. There was seriously no difficulty at all in the facts and circumstances of the present case, to regularize the defect pointed out, because M/s. Bhagwati Vanaspati Traders, is admittedly the sole proprietorship concern of B.K. Garg. The postal authorities should have solicited the change of the name in the NSC, through a representation by B.K. Garg himself. On receipt of such a representation, the alleged irregularity would have been cured, and the beneficiary of the deposit, would have legitimately reaped the fruits thereof. Rather than adopting the above simple course, the postal authorities chose to strictly and rigidly interpret the terms of the scheme. This resulted in the denial of the legitimate claims of the sole proprietor of the appellant concern, i.e., B.K. Garg, of the investment made by him. In the above view of the matter, we consider it just and appropriate, in exercise of our jurisdiction under Article 142 of the Constitution of India, to direct the Senior Superintendent of Post Offices, Meerut, to correct the NSC issued in the name of M/s. Bhagwati Vanaspati Traders, by substituting the appellant’s name, with that of B.K. Garg. 12. The irregularity having been cured, we hope that B.K. Garg will now be released all the payments due to him, in terms of the order passed by the District Forum. The respondent is accordingly directed to pay to B.K. Garg, the maturity amount of Rs.10,075/- with 12% interest, from the date of maturity, till the date of payment. He would be entitled to Rs.5,000/- towards compensation, as was awarded to him by the District Forum. In addition, we consider it just and appropriate to award him litigation costs of Rs.10,000/-. The entire amount aforementioned, should be released to B.K. Garg, the sole proprietor of M/s. Bhagwati Vanaspati Traders, within one month from the date of receipt of a certified copy of this judgment.13.
### Response:
1
### Explanation:
It is not possible for us to deny relief to the appellant, based on the judgments rendered by this Court in Raja Prameeelamma case (supra) and Arulmighu Dhandayadhapaniswamy Thirukoil case (supra), in view of the fact that, the matter was never examined in the perspective determined by us hereinabove. In neither of the two judgments, the amendment of the NSC was sought. The instant proposition of law, was also not projected on behalf of the certificate holders, in the manner expressedwas seriously no difficulty at all in the facts and circumstances of the present case, to regularize the defect pointed out, because M/s. Bhagwati Vanaspati Traders, is admittedly the sole proprietorship concern of B.K. Garg. The postal authorities should have solicited the change of the name in the NSC, through a representation by B.K. Garg himself. On receipt of such a representation, the alleged irregularity would have been cured, and the beneficiary of the deposit, would have legitimately reaped the fruits thereof. Rather than adopting the above simple course, the postal authorities chose to strictly and rigidly interpret the terms of the scheme. This resulted in the denial of the legitimate claims of the sole proprietor of the appellant concern, i.e., B.K. Garg, of the investment made by him. In the above view of the matter, we consider it just and appropriate, in exercise of our jurisdiction under Article 142 of the Constitution of India, to direct the Senior Superintendent of Post Offices, Meerut, to correct the NSC issued in the name of M/s. Bhagwati Vanaspati Traders, by substituting thename, with that of B.K.irregularity having been cured, we hope that B.K. Garg will now be released all the payments due to him, in terms of the order passed by the District Forum. The respondent is accordingly directed to pay to B.K. Garg, the maturity amount of Rs.10,075/- with 12% interest, from the date of maturity, till the date of payment. He would be entitled to Rs.5,000/- towards compensation, as was awarded to him by the District Forum. In addition, we consider it just and appropriate to award him litigation costs of Rs.10,000/-. The entire amount aforementioned, should be released to B.K. Garg, the sole proprietor of M/s. Bhagwati Vanaspati Traders, within one month from the date of receipt of a certified copy of this judgment.
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Vidya Vati Vs. Devi Das | (incoreprist) but must be accompanied by a profort in curiem of the money tendered. If the defendant can maintain this plea, although he , will not thereby bar the debt (for that would be inconsistent with uncore prist and profort in curiem) yet he will answer the action . in the sense that he will recover judgment for his costs of defence against the plaintiff in which respect the plea of tender is essentially different from that of payment of money into court. And, as the plea is thus to constitute an answer to the action, it must, we conceive, be dificient in none of the requisite qualities of a good plea in bar. 6. This decision has been quoted with approval in Leaks on Contracts, 8th Ed. at page 663 and it establishes beyond disputation that merely because the plaintiff or the defendant has tendered the amount due and payable by him and such tender has been wrongly refused by the other party, it does not absolve the first named party from its obligation to make payment of the amount and where the obligation t o make payment of the amount is concurrent with the obligation to hand over possession, the claim for recovery of possession must be accompanied by payment or deposit of the amount. The respondent was, therefore, clearly bound to pay or deposit the amount of loan as a condition of recovery of possession of the premises from the appellant.We may point out that in fact, in the present case, there was no valid tender of the sum of Rs. 7500/- by the respondent to the appellant. The case of the respondent was that he tendered the sum of Rs. 7500/- in cash to the appellant on 26th August, 1969 but the appellant refused to accept the sum. Now, we will assume for the purpose of argument that this case of the respondent is factually correct and that he did tender the sum of Rs. 7500/- in cash to the appellant on 26th August, 1969, but this was obviously not a valid tender, because under the terms of the agreement the respondent could repay the amount of the loan to. the appellant only on the expiry of the period of two years and the date of the agreement being 27th September, 1967, the period of two years expired on 26th September, 1969. The respondent could not validly tender the sum of Rs. 7500/- to the appellant in repayment of the amount of the loan until 27th September, 1969 and the tender made by him on 26th August, 1969 was clearly invalid. It may be noted that it was not the case of the respondent that he made any fresh tender to the appellant on or after 27th September, 1969 and hence the conclusion must inevitably follow that the respondent did not at any time make a valid tender to the appellant of the sum of Rs. 7500/-. Now, if the respondent did not at any time validly tender payment of the sum of Rs. 7500/- to the appellant, the appellant obviously did not become liable to hand over possession of the premises to the respondent and a fortjori no claim for damages for wrongful use and occupation of the premises could be sustained by the respondent against the appellant. It was pointed out to us on behalf of the respondent that he had already filled. suits against the appellant for damages or compensation for wrongful use and occupation of the premises and one of the suits, namely Suit No. 800 of 1975 had been decreed by the Sub-Judge, 1st Class and Civil Appeal No. 9 of 1975 preferred by the appellant against it had been dismissed by the Additional District Judge, Delhi on the basis that the respondent had made a valid tender of the sum of Rs. 7500/- to the appellant and since the appellant had refused to accept the same, she was in wrongful use and occupation of the premises from the date of the tender and was, therefore, liable to pay compensation to the respondent from that date. This is true, but it cannot preclude us from laying down what we think to be the correct legal position on a proper interpretation of the agreement between the parties. More- over, this decision is under appeal before the High Court. But, apart from that, we do not think this decision is correct, because, on the view we have taken, the respondent was not entitled to tender the sum of Rs. 7500/- to the appellant before 27th September, 1969 and even if a tender was made by him on 26th August, 1969 as alleged by him, the appellant was entitled to refuse to accept the same and she did not become liable to hand over vacant possession of the premises to the respondent or to pay compensation to the respondent in respect of her occupation of the premises. It is only if the respondent made a valid tender of the sum of Rs. 7500/- to the appellant on or after 27th September, 1969 that the appellant would be liable to hand over vacant possession of the premises to the respondent and since that did not happen in the present case, there was no obligation on the appellant to deliver possession of the premises to the respondent. The respondent was not entitled to claim possession of the premises from the appellant unless he paid or deposited the sum of Rs. 7500/- in court in repayment of the amount of the loan. The High Court as well as the learned Sub-Judge were, therefore, in error in allowing the review application and ordering that the direction requiring the respondent to pay to the appellant or to deposit in court a sum of Rs. 7500/- in repayment of the amount of the loan should be deleted. It was a correct and valid direction and it was rightly introduced in the original ex-parte decree passed by the learned Sub Judge. | 1[ds]Now, there can be no doubt that under section 115 of theCode of Civil Procedure a revision application can lie before the High Court fro m an order made by a subordinate court only if no appeal lies from that order to the High Court. The words of limitation used in section 115 are in which no appeal lies thereto and these. words clearly mean that no appeal must lie to the High Court from the order sought to be revised, because an appeal is a much larger remedy than a revision application and if an appeal lies, that would afford sufficient relief and there would be no reason or justification for invoking the revisional jurisdiction.The question, therefore, here is whether an appeal against the order made by the learned Sub-Judge allowing the review application lay to the High Court.If it did, the. revision application would be clearly incompetent. Now Order XLIII, Rule 1. cI. (s) undoubtedly provides an appeal against an order allowing a review application, but the order allowing the review application in the present case was made by the learned Sub Judge, and hence an appeal against it lay to the District Court and not to the High Court, and, obviously, since no appeal lay against t he order of the learned Sub-Judge to the High Court, the revision application could not be rejected as incompetent. The preliminary contention must. in the circumstances, be decided against the respondent.The. determination of this question turns on the true interpretation of the agreement between the parties. If we turn to the agreement it is clear that the loan of Rs. 7500/- was advanced by the appellant to the respondent for a period of two years and in lieu of interest on the amount of the loan, the respondent handed over the possession of the premises to the appellant and the appellant was entitled to occupy the same free of rent. We have already set out the relevant portions of the agreement and it appears clearly from those provisions that the respondent was not entitled to repay the amount of the loan and demand recovery of possession of the premises from the appellant before the expiry of the period of two years. It was only of the expiration of the period of two years that the respondent was entitled to repay the amount of the loan and if he wanted to do so, he was required to give one months notice in writing to the appellant and on such repayment, the appellant was bound to hand over vacant possession of the premises to him. If, despite the repayment of the amount of the loan by the respondent, the appellant failed to hand over vacant possession of the premises to the respondent, she was liable to pay damages at the rate, of Rs. 110/- per month. But if for any reason the respondent failed to repay the amount of the loan on the expiry o f the period of two years, he could not claim to recover any damages from the appellant. Clearly the obligation of the appellant to hand over vacant possession of the premises to the respondent was concurrent with the obligation of the respondent to repay the amount of loan to the appellant and the respondent could not claim possession of the premises from the appellant without making repayment of the amount of the loan. It the respondent tendered a sum of Rs. 7500/- to the appellant in repayment of the amount of the loan and yet the appellant refused to accept the same, the appellant might incur liability to pay to the respondent damages for wrongful use and occupation of the premises, but the respondent could not say that he was exonerated from the obligation to repay the amount of the loan and was entitled to recover possession of the premises without making repayment of the amount of the loan. The respondent could seek to recover possession of the premises from the appellant only ion condition of making repayment of the loan, because the two obligations were mutual and concurrent and were required to be simultaneously performed and one could not get delinked from the other by reason of any refusal on the part of the appellant to accept the tender of Rs. 7500/- from the respondent.The respondent was, therefore, clearly bound to pay or deposit the amount of loan as a condition of recovery of possession of the premises from the appellant.We may point out that in fact, in the present case, there was no valid tender of the sum of Rs. 7500/- by the respondent to the appellant. The case of the respondent was that he tendered the sum of Rs. 7500/- in cash to the appellant on 26th August, 1969 but the appellant refused to accept the sum. Now, we will assume for the purpose of argument that this case of the respondent is factually correct and that he did tender the sum of Rs. 7500/- in cash to the appellant on 26th August, 1969, but this was obviously not a valid tender, because under the terms of the agreement the respondent could repay the amount of the loan to. the appellant only on the expiry of the period of two years and the date of the agreement being 27th September, 1967, the period of two years expired on 26th September, 1969. The respondent could not validly tender the sum of Rs. 7500/- to the appellant in repayment of the amount of the loan until 27th September, 1969 and the tender made by him on 26th August, 1969 was clearly invalid. It may be noted that it was not the case of the respondent that he made any fresh tender to the appellant on or after 27th September, 1969 and hence the conclusion must inevitably follow that the respondent did not at any time make a valid tender to the appellant of the sum of Rs. 7500/-. Now, if the respondent did not at any time validly tender payment of the sum of Rs. 7500/- to the appellant, the appellant obviously did not become liable to hand over possession of the premises to the respondent and a fortjori no claim for damages for wrongful use and occupation of the premises could be sustained by the respondent against the appellant.The respondent could not validly tender the sum of Rs. 7500/- to the appellant in repayment of the amount of the loan until 27th September, 1969 and the tender made by him on 26th August, 1969 was clearly invalid. It may be noted that it was not the case of the respondent that he made any fresh tender to the appellant on or after 27th September, 1969 and hence the conclusion must inevitably follow that the respondent did not at any time make a valid tender to the appellant of the sum of Rs. 7500/-. Now, if the respondent did not at any time validly tender payment of the sum of Rs. 7500/- to the appellant, the appellant obviously did not become liable to hand over possession of the premises to the respondent and a fortjori no claim for damages for wrongful use and occupation of the premises could be sustained by the respondent against the appellant.It was pointed out to us on behalf of the respondent that he had already filled. suits against the appellant for damages or compensation for wrongful use and occupation of the premises and one of the suits, namely Suit No. 800 of 1975 had been decreed by the Sub-Judge, 1st Class and Civil Appeal No. 9 of 1975 preferred by the appellant against it had been dismissed by the Additional District Judge, Delhi on the basis that the respondent had made a valid tender of the sum of Rs. 7500/- to the appellant and since the appellant had refused to accept the same, she was in wrongful use and occupation of the premises from the date of the tender and was, therefore, liable to pay compensation to the respondent from that date. This is true, but it cannot preclude us from laying down what we think to be the correct legal position on a proper interpretation of the agreement between the parties. More- over, this decision is under appeal before the High Court. But, apart from that, we do not think this decision is correct, because, on the view we have taken, the respondent was not entitled to tender the sum of Rs. 7500/- to the appellant before 27th September, 1969 and even if a tender was made by him on 26th August, 1969 as alleged by him, the appellant was entitled to refuse to accept the same and she did not become liable to hand over vacant possession of the premises to the respondent or to pay compensation to the respondent in respect of her occupation of the premises. It is only if the respondent made a valid tender of the sum of Rs. 7500/- to the appellant on or after 27th September, 1969 that the appellant would be liable to hand over vacant possession of the premises to the respondent and since that did not happen in the present case, there was no obligation on the appellant to deliver possession of the premises to the respondent. The respondent was not entitled to claim possession of the premises from the appellant unless he paid or deposited the sum of Rs. 7500/- in court in repayment of the amount of the loan. The High Court as well as the learned Sub-Judge were, therefore, in error in allowing the review application and ordering that the direction requiring the respondent to pay to the appellant or to deposit in court a sum of Rs. 7500/- in repayment of the amount of the loan should be deleted. It was a correct and valid direction and it was rightly introduced in the original ex-parte decree passed by the learned Sub Judge. | 1 | 3,641 | 1,783 | ### 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:
(incoreprist) but must be accompanied by a profort in curiem of the money tendered. If the defendant can maintain this plea, although he , will not thereby bar the debt (for that would be inconsistent with uncore prist and profort in curiem) yet he will answer the action . in the sense that he will recover judgment for his costs of defence against the plaintiff in which respect the plea of tender is essentially different from that of payment of money into court. And, as the plea is thus to constitute an answer to the action, it must, we conceive, be dificient in none of the requisite qualities of a good plea in bar. 6. This decision has been quoted with approval in Leaks on Contracts, 8th Ed. at page 663 and it establishes beyond disputation that merely because the plaintiff or the defendant has tendered the amount due and payable by him and such tender has been wrongly refused by the other party, it does not absolve the first named party from its obligation to make payment of the amount and where the obligation t o make payment of the amount is concurrent with the obligation to hand over possession, the claim for recovery of possession must be accompanied by payment or deposit of the amount. The respondent was, therefore, clearly bound to pay or deposit the amount of loan as a condition of recovery of possession of the premises from the appellant.We may point out that in fact, in the present case, there was no valid tender of the sum of Rs. 7500/- by the respondent to the appellant. The case of the respondent was that he tendered the sum of Rs. 7500/- in cash to the appellant on 26th August, 1969 but the appellant refused to accept the sum. Now, we will assume for the purpose of argument that this case of the respondent is factually correct and that he did tender the sum of Rs. 7500/- in cash to the appellant on 26th August, 1969, but this was obviously not a valid tender, because under the terms of the agreement the respondent could repay the amount of the loan to. the appellant only on the expiry of the period of two years and the date of the agreement being 27th September, 1967, the period of two years expired on 26th September, 1969. The respondent could not validly tender the sum of Rs. 7500/- to the appellant in repayment of the amount of the loan until 27th September, 1969 and the tender made by him on 26th August, 1969 was clearly invalid. It may be noted that it was not the case of the respondent that he made any fresh tender to the appellant on or after 27th September, 1969 and hence the conclusion must inevitably follow that the respondent did not at any time make a valid tender to the appellant of the sum of Rs. 7500/-. Now, if the respondent did not at any time validly tender payment of the sum of Rs. 7500/- to the appellant, the appellant obviously did not become liable to hand over possession of the premises to the respondent and a fortjori no claim for damages for wrongful use and occupation of the premises could be sustained by the respondent against the appellant. It was pointed out to us on behalf of the respondent that he had already filled. suits against the appellant for damages or compensation for wrongful use and occupation of the premises and one of the suits, namely Suit No. 800 of 1975 had been decreed by the Sub-Judge, 1st Class and Civil Appeal No. 9 of 1975 preferred by the appellant against it had been dismissed by the Additional District Judge, Delhi on the basis that the respondent had made a valid tender of the sum of Rs. 7500/- to the appellant and since the appellant had refused to accept the same, she was in wrongful use and occupation of the premises from the date of the tender and was, therefore, liable to pay compensation to the respondent from that date. This is true, but it cannot preclude us from laying down what we think to be the correct legal position on a proper interpretation of the agreement between the parties. More- over, this decision is under appeal before the High Court. But, apart from that, we do not think this decision is correct, because, on the view we have taken, the respondent was not entitled to tender the sum of Rs. 7500/- to the appellant before 27th September, 1969 and even if a tender was made by him on 26th August, 1969 as alleged by him, the appellant was entitled to refuse to accept the same and she did not become liable to hand over vacant possession of the premises to the respondent or to pay compensation to the respondent in respect of her occupation of the premises. It is only if the respondent made a valid tender of the sum of Rs. 7500/- to the appellant on or after 27th September, 1969 that the appellant would be liable to hand over vacant possession of the premises to the respondent and since that did not happen in the present case, there was no obligation on the appellant to deliver possession of the premises to the respondent. The respondent was not entitled to claim possession of the premises from the appellant unless he paid or deposited the sum of Rs. 7500/- in court in repayment of the amount of the loan. The High Court as well as the learned Sub-Judge were, therefore, in error in allowing the review application and ordering that the direction requiring the respondent to pay to the appellant or to deposit in court a sum of Rs. 7500/- in repayment of the amount of the loan should be deleted. It was a correct and valid direction and it was rightly introduced in the original ex-parte decree passed by the learned Sub Judge.
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to recover possession of the premises from the appellant only ion condition of making repayment of the loan, because the two obligations were mutual and concurrent and were required to be simultaneously performed and one could not get delinked from the other by reason of any refusal on the part of the appellant to accept the tender of Rs. 7500/- from the respondent.The respondent was, therefore, clearly bound to pay or deposit the amount of loan as a condition of recovery of possession of the premises from the appellant.We may point out that in fact, in the present case, there was no valid tender of the sum of Rs. 7500/- by the respondent to the appellant. The case of the respondent was that he tendered the sum of Rs. 7500/- in cash to the appellant on 26th August, 1969 but the appellant refused to accept the sum. Now, we will assume for the purpose of argument that this case of the respondent is factually correct and that he did tender the sum of Rs. 7500/- in cash to the appellant on 26th August, 1969, but this was obviously not a valid tender, because under the terms of the agreement the respondent could repay the amount of the loan to. the appellant only on the expiry of the period of two years and the date of the agreement being 27th September, 1967, the period of two years expired on 26th September, 1969. The respondent could not validly tender the sum of Rs. 7500/- to the appellant in repayment of the amount of the loan until 27th September, 1969 and the tender made by him on 26th August, 1969 was clearly invalid. It may be noted that it was not the case of the respondent that he made any fresh tender to the appellant on or after 27th September, 1969 and hence the conclusion must inevitably follow that the respondent did not at any time make a valid tender to the appellant of the sum of Rs. 7500/-. Now, if the respondent did not at any time validly tender payment of the sum of Rs. 7500/- to the appellant, the appellant obviously did not become liable to hand over possession of the premises to the respondent and a fortjori no claim for damages for wrongful use and occupation of the premises could be sustained by the respondent against the appellant.The respondent could not validly tender the sum of Rs. 7500/- to the appellant in repayment of the amount of the loan until 27th September, 1969 and the tender made by him on 26th August, 1969 was clearly invalid. It may be noted that it was not the case of the respondent that he made any fresh tender to the appellant on or after 27th September, 1969 and hence the conclusion must inevitably follow that the respondent did not at any time make a valid tender to the appellant of the sum of Rs. 7500/-. Now, if the respondent did not at any time validly tender payment of the sum of Rs. 7500/- to the appellant, the appellant obviously did not become liable to hand over possession of the premises to the respondent and a fortjori no claim for damages for wrongful use and occupation of the premises could be sustained by the respondent against the appellant.It was pointed out to us on behalf of the respondent that he had already filled. suits against the appellant for damages or compensation for wrongful use and occupation of the premises and one of the suits, namely Suit No. 800 of 1975 had been decreed by the Sub-Judge, 1st Class and Civil Appeal No. 9 of 1975 preferred by the appellant against it had been dismissed by the Additional District Judge, Delhi on the basis that the respondent had made a valid tender of the sum of Rs. 7500/- to the appellant and since the appellant had refused to accept the same, she was in wrongful use and occupation of the premises from the date of the tender and was, therefore, liable to pay compensation to the respondent from that date. This is true, but it cannot preclude us from laying down what we think to be the correct legal position on a proper interpretation of the agreement between the parties. More- over, this decision is under appeal before the High Court. But, apart from that, we do not think this decision is correct, because, on the view we have taken, the respondent was not entitled to tender the sum of Rs. 7500/- to the appellant before 27th September, 1969 and even if a tender was made by him on 26th August, 1969 as alleged by him, the appellant was entitled to refuse to accept the same and she did not become liable to hand over vacant possession of the premises to the respondent or to pay compensation to the respondent in respect of her occupation of the premises. It is only if the respondent made a valid tender of the sum of Rs. 7500/- to the appellant on or after 27th September, 1969 that the appellant would be liable to hand over vacant possession of the premises to the respondent and since that did not happen in the present case, there was no obligation on the appellant to deliver possession of the premises to the respondent. The respondent was not entitled to claim possession of the premises from the appellant unless he paid or deposited the sum of Rs. 7500/- in court in repayment of the amount of the loan. The High Court as well as the learned Sub-Judge were, therefore, in error in allowing the review application and ordering that the direction requiring the respondent to pay to the appellant or to deposit in court a sum of Rs. 7500/- in repayment of the amount of the loan should be deleted. It was a correct and valid direction and it was rightly introduced in the original ex-parte decree passed by the learned Sub Judge.
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Narinder Chand Hem Raj & Ors Vs. Lt. Governor, Administrator, Union Territory,Himachal Prade | issue a mandate to alter any law.10. Section 8 of the Bombay City Land Revenue Act provides:"It shall be the duty of the Collector, subject to the orders of the. Provincial Government, to fix and to levy the assessment for land revenue.Where there is no right on the part of the superior holder in limitation of the right of the Provincial Government to assess, the assessment shall be fixed at the discretion of the Collector subject to the control of the Provincial Government.When there is a right on the part of the superior holder in limitation of the right of the Provincial Government, in consequence of a specific limit to assessment having been established and preserved, the assessment shall not exceed such specific limit."11. Section 8 did not impose any land revenue. It only imposed a duty on the Collector to fix and to levy the assessment. Power to levy land revenue was the prerogative of the Government. The Court held that in view of the seventy years possession of the land by the Corporation openly and in assertion of a right to hold that land free of rent, it had acquired an adverse title to the property though the right acquired was a limited one. This is what the court observed (p. 52 of the report);"Such possession being not referable to any the 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 an invalid grant. This possession was continued, openly as of right, uninterruptedly for over 70 years and the respondent Corporation had acquired the limited title in it and its predecessor in title had been prescribing during all this period, that is to say, the right to old the land in perpetuity free from rent but only for the purpose 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 of an inseverable incident of the title so acquired, as is the obligation to hold the land for the purposes of market and for no other purpose."12. From these observations, it is clear that in that case the court was only considering the relationship between a landlord and a tenant. It was sought to be argued in that case 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 the prerogative right to assess "land revenue". The Court refused to entertain that plea as it was not raised in the written statement, nor made the subject-matter of an issue on which the parties went to trial. Hence the ratio of that decision has no relevance for our present purpose.13. The other decision relied upon by the appellant is Union of India v. M/s. Anglo Afghan Agencies Ltd., (1968) 2 SCR 366 = (AIR 1968 SC 718 ). Therein in exercise of the powers conferred on the Government under Section 3 of the Imports and Exports (Control) Act, 1947, the Central Government issued the Imports (Control) Order, 1955 and other orders setting out the policy governing the grant of import and export licences. The Central Government also evolved an Import Trade Policy to facilitate the mechanism of the Act and the orders issued thereunder. The scheme was modified from time to time by issuing fresh schemes in respect of new commodities. In 1962, the Central Government promulgated the Export Promotion Scheme providing incentives to exporters of woollen-textiles and goods. It provided for the grant to an exporter, certificates to import raw materias of a total amount equal to 100 per cent of the F. O. B. value of his exports. Clause 10 of the Scheme provided that the Textile Commissioner could grant an import certificate for a lesser amount if he is satisfied, after holding an enquiry, that the declared value of the goods exported was higher that the real value of the goods. The Scheme was extended to exports of woollen textiles and goods to Afghanistan. The Textile commissioner without holding an enquiry as required by clause 10 of the scheme, arbitrarily reduced the import quota of some of the exporters on the basis of some private enquiry. One such exporter moved the High court for the issuance of a writ to the Government to abide by the terms of the scheme, on behalf of the Government, it was urged that the scheme contained only administrative instructions and the Government was competent to change the scheme depending upon the exigencies of situation. On facts this Court came to the conclusion that the scheme was not changed because of any exigencies of situation and the import quota of some of the exporters was reduced on the basis of some private enquiry. Under those circumstances this Court held that the Government was bound by the representation that it made regarding the quota to which the exporters were entitled to under the scheme. The ratio of that decision again cannot have any bearing on the point under consideration. So long as that scheme was in force, the Government was bound to implement the same. This Court did not hold that the Government was not competent to change the scheme. If the scheme had statutory force, it bound the Government as much as it bound the exporters. In that event the court was competent to compel the Government to act according to the scheme. If on the other hand the scheme contained merely administrative instructions then the Government having made the representation referred to earlier, on the basis of which the exporters had exported certain goods, the Government was estopped from going back on the representation made by it. In this case, again, there was no question of issuing any direction to make a law or abrogate an existing law. | 0[ds]It appears from the letter written by the Secretary, Excise to Government of Himachal Pradesh to the Deputy Secretary, Government of India, Ministry of Home Affairs on June 24, 1967 and from the letter written by the Chief Secretary to the Himachal Pradesh Government to the Additional Secretary (U. T.) to the Government of India, Ministry of Home Affairs on January 16, 1968 that the Government of Himachal Pradesh wanted to bring their sales tax laws relating to the sale of Indian made foreign liquor in line with the law in force in Haryana State. But it is clear from those letters that the Himachal Pradesh Government was of the opinion that it could not do so without the concurrence of the Central Government. Whether the Himachal Pradesh Government was competent to alter the Sales Tax Law as desired by it without the concurrence of the Central Government, as contended on behalf of the appellant or whether it could do so only with the concurrence of the Central Government, as contended on behalf of the respondents, the fact remains that the Government of Himachal Pradesh was of the opinion that it could not alter the law without the concurrence of the Central Government. That being so, it is difficult to accept the contention of the appellant that the Deputy Commissioner had represented that the Himachal Pradesh Government had decided to remove sales tax on the sale of Indian made foreign liquor. The only thing which the Deputy Commissioner could have announced was that the Himachal Pradesh Government was considering the abolition of the tax in question. The learned single judge who heard the writ petition came to conclusion that "there is no positive evidence on record to support the contention that this announcement that the Government of Himachal Pradesh had decided to remove sales tax on sale of Indian made foreign liquor) was actually made by the Collector conducting the auction as a condition of the auction". Before coming to this conclusion, the learned single judge had considered all the relevant material bearing on the point. But the Division Bench while hearing the appeal of the appellant did not analyse the evidence bearing on the point nor did it consider the effect of the material before it. It held "it is clear from the admission contained in paragraph 2 of the letter dated the 16th of January 1968, that there was some announcement on the 31st of March, 1967, when the auction was held and it was not an ambiguous announcement. It was presumably specific to the effect that either the Government of Himachal Pradesh bad decided to abolish the sales tax or that they were going to achieve its abolition in respect of the merged areas." This is at best a speculative conclusion.5. Our attention has not been invited to any material on record on the basis of which that conclusion could have been arrived at by the Division Bench. The two letters referred to earlier do not support that conclusion. The averment in the writ petition, as seen earlier does not accord with the case taken at the time of the arguments. The Government has denied that the Deputy commissioner had either been authorised or be had made the representation at the time of the auction that the Government had decided to abolish the sales tax on sale of Indian made foreign liquor. According to the respondents, all that the Deputy commissioner had represented to the bidders was that the Government was considering the abolition of the sales tax on sale of Indian made foreign liquor; such a representation cannot be considered as a condition of the auction, assuming that such a condition can be imposed orally by the Deputy Commissioner. Hence in our opinion the Division Bench erred in its conclusion about the alleged representation by the Deputy Commissioner.From these observations, it is clear that in that case the court was only considering the relationship between a landlord and a tenant. It was sought to be argued in that case 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 the prerogative right to assess "land revenue". The Court refused to entertain that plea as it was not raised in the written statement, nor made the subject-matter of an issue on which the parties went to trial. Hence the ratio of that decision has no relevance for our presentfacts this Court came to the conclusion that the scheme was not changed because of any exigencies of situation and the import quota of some of the exporters was reduced on the basis of some private enquiry. Under those circumstances this Court held that the Government was bound by the representation that it made regarding the quota to which the exporters were entitled to under the scheme. The ratio of that decision again cannot have any bearing on the point under consideration. So long as that scheme was in force, the Government was bound to implement the same. This Court did not hold that the Government was not competent to change the scheme. If the scheme had statutory force, it bound the Government as much as it bound the exporters. In that event the court was competent to compel the Government to act according to the scheme. If on the other hand the scheme contained merely administrative instructions then the Government having made the representation referred to earlier, on the basis of which the exporters had exported certain goods, the Government was estopped from going back on the representation made by it. In this case, again, there was no question of issuing any direction to make a law or abrogate an existing law.This finding alone is sufficient to dismiss the appeal but as Mr. Sibbal, learned counsel or the appellant has elaborately argued the question of law to which we shall presently refer, we shall examine theAugust 31, 1966, Indian made foreign liquor was in Schedule B. But on that date the Government of Punjab in exercise of its powers conferred under proviso to Section 5 deleted Indian made foreign liquor from Schedule B and included the same in Schedule A to that Act. Thus the sale of the said liquor became eligible to sales tax. This was the law in force in Punjab when reorganisation took place. Hence Simla and other areas which were formerly parts of the state of undivided Punjab continued to be governed by that law even after reorganisation. Our attention has not been drawn to any provision in that Act empowering the Government to exempt any assessee from payment of tax. Therefore it is clear that the appellant was liable to pay the tax imposed under the law. What the appellant really wants is a mandate from the court to the competent authority to delete the concerned entry from Schedule A and include the same in Schedule B. We shall not go into the question whether the Government of Himachal Pradesh on its own authority was competent to make the alteration in question or not. We shall assume for our present purpose that it had such a power. The power to impose a tax is undoubtedly a legislative power. That can be exercised by the legislature directly or subject to certain conditions, the legislature may delegate that power to some other authority. But the exercise of that power, whether by the legislature or by its delegate is an exercise of a legislative power. The fact that the power was delegated to the executive does not convert that power into an executive or administrative power. No court can issue a mandate to a legislature to enact a particular law. Similarly no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact. The relief as framed by the appellant in his writ petition does not bring out the real issue calling for determination. In reality he wants this court to direct the Government to delete the entry in question from Schedule A and include the same in Schedule B. Article 265 of the constitution lays down that no tax can be levied and collected except by authority of law. Hence the levy of a tax can only be done by the authority of law and not by any executive order. unless the executive is specifically empowered by law to give any exemption, it cannot say that it will not enforce the law as against a particular person. No court can give a direction to a Government to refrain from enforcing a provision of law. Under these circumstances, we must bold that the relief asked for by the appellant cannot be granted. | 0 | 3,679 | 1,570 | ### Instruction:
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issue a mandate to alter any law.10. Section 8 of the Bombay City Land Revenue Act provides:"It shall be the duty of the Collector, subject to the orders of the. Provincial Government, to fix and to levy the assessment for land revenue.Where there is no right on the part of the superior holder in limitation of the right of the Provincial Government to assess, the assessment shall be fixed at the discretion of the Collector subject to the control of the Provincial Government.When there is a right on the part of the superior holder in limitation of the right of the Provincial Government, in consequence of a specific limit to assessment having been established and preserved, the assessment shall not exceed such specific limit."11. Section 8 did not impose any land revenue. It only imposed a duty on the Collector to fix and to levy the assessment. Power to levy land revenue was the prerogative of the Government. The Court held that in view of the seventy years possession of the land by the Corporation openly and in assertion of a right to hold that land free of rent, it had acquired an adverse title to the property though the right acquired was a limited one. This is what the court observed (p. 52 of the report);"Such possession being not referable to any the 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 an invalid grant. This possession was continued, openly as of right, uninterruptedly for over 70 years and the respondent Corporation had acquired the limited title in it and its predecessor in title had been prescribing during all this period, that is to say, the right to old the land in perpetuity free from rent but only for the purpose 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 of an inseverable incident of the title so acquired, as is the obligation to hold the land for the purposes of market and for no other purpose."12. From these observations, it is clear that in that case the court was only considering the relationship between a landlord and a tenant. It was sought to be argued in that case 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 the prerogative right to assess "land revenue". The Court refused to entertain that plea as it was not raised in the written statement, nor made the subject-matter of an issue on which the parties went to trial. Hence the ratio of that decision has no relevance for our present purpose.13. The other decision relied upon by the appellant is Union of India v. M/s. Anglo Afghan Agencies Ltd., (1968) 2 SCR 366 = (AIR 1968 SC 718 ). Therein in exercise of the powers conferred on the Government under Section 3 of the Imports and Exports (Control) Act, 1947, the Central Government issued the Imports (Control) Order, 1955 and other orders setting out the policy governing the grant of import and export licences. The Central Government also evolved an Import Trade Policy to facilitate the mechanism of the Act and the orders issued thereunder. The scheme was modified from time to time by issuing fresh schemes in respect of new commodities. In 1962, the Central Government promulgated the Export Promotion Scheme providing incentives to exporters of woollen-textiles and goods. It provided for the grant to an exporter, certificates to import raw materias of a total amount equal to 100 per cent of the F. O. B. value of his exports. Clause 10 of the Scheme provided that the Textile Commissioner could grant an import certificate for a lesser amount if he is satisfied, after holding an enquiry, that the declared value of the goods exported was higher that the real value of the goods. The Scheme was extended to exports of woollen textiles and goods to Afghanistan. The Textile commissioner without holding an enquiry as required by clause 10 of the scheme, arbitrarily reduced the import quota of some of the exporters on the basis of some private enquiry. One such exporter moved the High court for the issuance of a writ to the Government to abide by the terms of the scheme, on behalf of the Government, it was urged that the scheme contained only administrative instructions and the Government was competent to change the scheme depending upon the exigencies of situation. On facts this Court came to the conclusion that the scheme was not changed because of any exigencies of situation and the import quota of some of the exporters was reduced on the basis of some private enquiry. Under those circumstances this Court held that the Government was bound by the representation that it made regarding the quota to which the exporters were entitled to under the scheme. The ratio of that decision again cannot have any bearing on the point under consideration. So long as that scheme was in force, the Government was bound to implement the same. This Court did not hold that the Government was not competent to change the scheme. If the scheme had statutory force, it bound the Government as much as it bound the exporters. In that event the court was competent to compel the Government to act according to the scheme. If on the other hand the scheme contained merely administrative instructions then the Government having made the representation referred to earlier, on the basis of which the exporters had exported certain goods, the Government was estopped from going back on the representation made by it. In this case, again, there was no question of issuing any direction to make a law or abrogate an existing law.
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has not been invited to any material on record on the basis of which that conclusion could have been arrived at by the Division Bench. The two letters referred to earlier do not support that conclusion. The averment in the writ petition, as seen earlier does not accord with the case taken at the time of the arguments. The Government has denied that the Deputy commissioner had either been authorised or be had made the representation at the time of the auction that the Government had decided to abolish the sales tax on sale of Indian made foreign liquor. According to the respondents, all that the Deputy commissioner had represented to the bidders was that the Government was considering the abolition of the sales tax on sale of Indian made foreign liquor; such a representation cannot be considered as a condition of the auction, assuming that such a condition can be imposed orally by the Deputy Commissioner. Hence in our opinion the Division Bench erred in its conclusion about the alleged representation by the Deputy Commissioner.From these observations, it is clear that in that case the court was only considering the relationship between a landlord and a tenant. It was sought to be argued in that case 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 the prerogative right to assess "land revenue". The Court refused to entertain that plea as it was not raised in the written statement, nor made the subject-matter of an issue on which the parties went to trial. Hence the ratio of that decision has no relevance for our presentfacts this Court came to the conclusion that the scheme was not changed because of any exigencies of situation and the import quota of some of the exporters was reduced on the basis of some private enquiry. Under those circumstances this Court held that the Government was bound by the representation that it made regarding the quota to which the exporters were entitled to under the scheme. The ratio of that decision again cannot have any bearing on the point under consideration. So long as that scheme was in force, the Government was bound to implement the same. This Court did not hold that the Government was not competent to change the scheme. If the scheme had statutory force, it bound the Government as much as it bound the exporters. In that event the court was competent to compel the Government to act according to the scheme. If on the other hand the scheme contained merely administrative instructions then the Government having made the representation referred to earlier, on the basis of which the exporters had exported certain goods, the Government was estopped from going back on the representation made by it. In this case, again, there was no question of issuing any direction to make a law or abrogate an existing law.This finding alone is sufficient to dismiss the appeal but as Mr. Sibbal, learned counsel or the appellant has elaborately argued the question of law to which we shall presently refer, we shall examine theAugust 31, 1966, Indian made foreign liquor was in Schedule B. But on that date the Government of Punjab in exercise of its powers conferred under proviso to Section 5 deleted Indian made foreign liquor from Schedule B and included the same in Schedule A to that Act. Thus the sale of the said liquor became eligible to sales tax. This was the law in force in Punjab when reorganisation took place. Hence Simla and other areas which were formerly parts of the state of undivided Punjab continued to be governed by that law even after reorganisation. Our attention has not been drawn to any provision in that Act empowering the Government to exempt any assessee from payment of tax. Therefore it is clear that the appellant was liable to pay the tax imposed under the law. What the appellant really wants is a mandate from the court to the competent authority to delete the concerned entry from Schedule A and include the same in Schedule B. We shall not go into the question whether the Government of Himachal Pradesh on its own authority was competent to make the alteration in question or not. We shall assume for our present purpose that it had such a power. The power to impose a tax is undoubtedly a legislative power. That can be exercised by the legislature directly or subject to certain conditions, the legislature may delegate that power to some other authority. But the exercise of that power, whether by the legislature or by its delegate is an exercise of a legislative power. The fact that the power was delegated to the executive does not convert that power into an executive or administrative power. No court can issue a mandate to a legislature to enact a particular law. Similarly no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact. The relief as framed by the appellant in his writ petition does not bring out the real issue calling for determination. In reality he wants this court to direct the Government to delete the entry in question from Schedule A and include the same in Schedule B. Article 265 of the constitution lays down that no tax can be levied and collected except by authority of law. Hence the levy of a tax can only be done by the authority of law and not by any executive order. unless the executive is specifically empowered by law to give any exemption, it cannot say that it will not enforce the law as against a particular person. No court can give a direction to a Government to refrain from enforcing a provision of law. Under these circumstances, we must bold that the relief asked for by the appellant cannot be granted.
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Thakur Pratap Singh Vs. Shri Krishna Gupta & Ors | the other along broad based, commonsense lines. This principle was enunciated by Viscount Maugham in - Punjab Co-operative Bank Ltd., Amritsar v. Income-tax Officer, Lahore, AIR 1940 PC 230 at p. 233 (B) and was quoted by the learned High Court Judges :"It is well settled general rule that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially."4. But part from that, this is to be found in the Act itself.5. The learned High Court Judges were of opinion that the directions here about the occupation were mandatory. That, we think, is wrong.6. The present matter is governed by section 18 of the Central Provinces and Berar Municipalities Act (11) of 1922. Among other things, the section empowers the State Government to"make rules under this Act regulating the mode .... of election of presidents ....." and section 175(1) directs that"all rules for which provision is made in this Act shall be made by the State Government and shall be consistent with this Act."7. Now one of the provisions of the Act, the one that directly concerns us, is set out in section 23 :"Anything done or any proceedings taken under this Act shall not be questioned .... on account of any defect or irregularity not affecting the merits of the case." The rules have, therefore, to be construed in the light of that provision.8. Rules 9(1) (i) states that -"..... each candidate shall ...... deliver to the Supervising Officer a nomination paper completed in the form appended and subscribed by the candidate himself as assenting to the nomination and by two duly qualified electors as propose and seconder."The amended form requires the candidate to give, among other things, his name, fathers name, age, address and occupation; and Rule 9(1) (iii) directs that the Supervising Officer"shall examine the nomination papers and shall decide all objections which may be made to any nomination and may either on such objection or on his own motion, after such summary enquiry, if any, as he thinks necessary, refuse any nomination on any of the following grounds :* * *(c) that there has been any failure to comply with any of the provisions of clause (i) ....."It was contended that the word "may" which we have underlined above has the force of "shall" in that context because clause (a) of the rule reads -"(a) that the candidate is ineligible for election under section 14 or section 15 of the Act."It was argued that if the candidates ineligibility under those sections is established, then the Supervising Officer has no option but to refuse the nomination and it was said that if that is the force of the word "may" in a case under clause (a) it cannot be given a different meaning when clause (c) is attracted.9. We need not stop to consider whether this argument would be valid if section 23 had not been there because the rules cannot travel beyond the Act and must be read subject to its provisions. Reading Rule 9(1) (iii) (c) in the light of section 23, all that we have to see is whether an omission to set out a candidates occupation can, be said to affect "the merits of the case". We are clear it does not.Take the case of a man who has no occupation. What difference would it make whether he entered the word "nil" there, or struck out the word "occupation" or placed a line against it, or just left it blank? How is the case any different, so far as the merits are concerned, when a man who has a occupation does not disclose it or misnames it, especially as a mans occupation is not one of the qualifications for the office of President.We are clear that this part of the form is only directory and is part of the description of the candidate; it does not go to the root of the matter so long as there is enough material in the paper to enable him to be identified beyond doubt.10. It was also argued that there was a reason for requiring the occupation to be stated, namely, because section 15(k) of the Act disqualified any person who "holds any office of profit" under the Committee. But disclosure of a candidates occupation would not necessarily reveal this because the occupation need only be stated in general terms such as "service" or "agriculture" and need not be particularised; also, in any event, section 15 sets out other grounds of disqualification which are not required to be shown in the form.11. As regards our earlier decision. That was a case in which the law required the satisfaction of a particular official at a particular time about the identity of an illiterate candidate. That, we held, was the substance and said in effect that if the law states that A must be satisfied about a particular matter, As satisfaction cannot be replaced by that of B; still less can it be dispensed with altogether. The law we are dealing with there also required that the satisfaction should be endorsed on the nomination paper. That we indicated was mere form and said at p. 513 -"If the Returning Officer had omitted the attestation because of some slip on his part and it could be proved that he was satisfied at the proper time, the matter might be different because the elements of his satisfaction at the proper time, which is of the substance, would be there, and the omission formally to record the satisfaction could probably, in a case like that be regarded as an unsubstantial technicality".12. A number of English cases were cited before us but it will be idle to examine them because we are concerned with the terms of section 23 of our Act and we can derive no assistance from decision that deal with other laws made in other countries to deal with situations that do not necessarily arise in India. | 1[ds]3. We do not think that is right and we deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter : they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensures; and when the legislature does not itself state which is which judges must determine the matter and, exercising a nice discrimination, sort out one class from the other along broad based, commonsenseare clear that this part of the form is only directory and is part of the description of the candidate; it does not go to the root of the matter so long as there is enough material in the paper to enable him to be identified beyonddisclosure of a candidates occupation would not necessarily reveal this because the occupation need only be stated in general terms such as "service" or "agriculture" and need not be particularised; also, in any event, section 15 sets out other grounds of disqualification which are not required to be shown in the form. | 1 | 1,603 | 224 | ### 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 other along broad based, commonsense lines. This principle was enunciated by Viscount Maugham in - Punjab Co-operative Bank Ltd., Amritsar v. Income-tax Officer, Lahore, AIR 1940 PC 230 at p. 233 (B) and was quoted by the learned High Court Judges :"It is well settled general rule that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially."4. But part from that, this is to be found in the Act itself.5. The learned High Court Judges were of opinion that the directions here about the occupation were mandatory. That, we think, is wrong.6. The present matter is governed by section 18 of the Central Provinces and Berar Municipalities Act (11) of 1922. Among other things, the section empowers the State Government to"make rules under this Act regulating the mode .... of election of presidents ....." and section 175(1) directs that"all rules for which provision is made in this Act shall be made by the State Government and shall be consistent with this Act."7. Now one of the provisions of the Act, the one that directly concerns us, is set out in section 23 :"Anything done or any proceedings taken under this Act shall not be questioned .... on account of any defect or irregularity not affecting the merits of the case." The rules have, therefore, to be construed in the light of that provision.8. Rules 9(1) (i) states that -"..... each candidate shall ...... deliver to the Supervising Officer a nomination paper completed in the form appended and subscribed by the candidate himself as assenting to the nomination and by two duly qualified electors as propose and seconder."The amended form requires the candidate to give, among other things, his name, fathers name, age, address and occupation; and Rule 9(1) (iii) directs that the Supervising Officer"shall examine the nomination papers and shall decide all objections which may be made to any nomination and may either on such objection or on his own motion, after such summary enquiry, if any, as he thinks necessary, refuse any nomination on any of the following grounds :* * *(c) that there has been any failure to comply with any of the provisions of clause (i) ....."It was contended that the word "may" which we have underlined above has the force of "shall" in that context because clause (a) of the rule reads -"(a) that the candidate is ineligible for election under section 14 or section 15 of the Act."It was argued that if the candidates ineligibility under those sections is established, then the Supervising Officer has no option but to refuse the nomination and it was said that if that is the force of the word "may" in a case under clause (a) it cannot be given a different meaning when clause (c) is attracted.9. We need not stop to consider whether this argument would be valid if section 23 had not been there because the rules cannot travel beyond the Act and must be read subject to its provisions. Reading Rule 9(1) (iii) (c) in the light of section 23, all that we have to see is whether an omission to set out a candidates occupation can, be said to affect "the merits of the case". We are clear it does not.Take the case of a man who has no occupation. What difference would it make whether he entered the word "nil" there, or struck out the word "occupation" or placed a line against it, or just left it blank? How is the case any different, so far as the merits are concerned, when a man who has a occupation does not disclose it or misnames it, especially as a mans occupation is not one of the qualifications for the office of President.We are clear that this part of the form is only directory and is part of the description of the candidate; it does not go to the root of the matter so long as there is enough material in the paper to enable him to be identified beyond doubt.10. It was also argued that there was a reason for requiring the occupation to be stated, namely, because section 15(k) of the Act disqualified any person who "holds any office of profit" under the Committee. But disclosure of a candidates occupation would not necessarily reveal this because the occupation need only be stated in general terms such as "service" or "agriculture" and need not be particularised; also, in any event, section 15 sets out other grounds of disqualification which are not required to be shown in the form.11. As regards our earlier decision. That was a case in which the law required the satisfaction of a particular official at a particular time about the identity of an illiterate candidate. That, we held, was the substance and said in effect that if the law states that A must be satisfied about a particular matter, As satisfaction cannot be replaced by that of B; still less can it be dispensed with altogether. The law we are dealing with there also required that the satisfaction should be endorsed on the nomination paper. That we indicated was mere form and said at p. 513 -"If the Returning Officer had omitted the attestation because of some slip on his part and it could be proved that he was satisfied at the proper time, the matter might be different because the elements of his satisfaction at the proper time, which is of the substance, would be there, and the omission formally to record the satisfaction could probably, in a case like that be regarded as an unsubstantial technicality".12. A number of English cases were cited before us but it will be idle to examine them because we are concerned with the terms of section 23 of our Act and we can derive no assistance from decision that deal with other laws made in other countries to deal with situations that do not necessarily arise in India.
### Response:
1
### Explanation:
3. We do not think that is right and we deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter : they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensures; and when the legislature does not itself state which is which judges must determine the matter and, exercising a nice discrimination, sort out one class from the other along broad based, commonsenseare clear that this part of the form is only directory and is part of the description of the candidate; it does not go to the root of the matter so long as there is enough material in the paper to enable him to be identified beyonddisclosure of a candidates occupation would not necessarily reveal this because the occupation need only be stated in general terms such as "service" or "agriculture" and need not be particularised; also, in any event, section 15 sets out other grounds of disqualification which are not required to be shown in the form.
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Filmistan Private, Limited Vs. Its Workmen and Another | the parties, the respondents agreeing to take one months bonus instead of two months which had been awarded by Sri Meher.5. The finding which the tribunal appears to have made in the present proceedings in regard to the character of the balance sheets is very vague and gives us no indication as to what extent the tribunal was prepared to accept the balance sheets as reliable :"For reasons already discussed, " says the tribunal, "implicit trust cannot be placed on some figures of profit and loss submitted and the balance sheets produced for judging its true financial position."Now, it is clear that in concrete terms, this statement means nothing at all. The failure of the tribunal to consider the balance sheets and arrive at its own decision as to the financial position of the appellant in fairly precise terms is another infirmity from which the award suffers.6. The tribunal has no doubt taken note of the fact that the appellant was not in a very flourishing condition but it thought that it was"a part of larger organization and group of industries; its directors are also the directors of Bharat Barrel and Drum Manufacturing Company (Private), Ltd., Bombay, and Prakash Cotton Mills, (Private), Ltd., Bombay."7. It is surprising that the tribunal should have made such a sweeping observation without any evidence on the record. Besides, we do not see the relevance or materiality of the consideration that the directors of the appellant are also the directors of other concerns. When industrial adjudication refers to an establishment as a part of a larger organization, it generally means that the establishment is a part of a larger organization carrying on the same or similar industry, and that the establishment concerned is an integral part of the said larger organization. In the present case, the mills of which some of the directors of the appellant happened to be the directors, are not and cannot be integrally connected with the appellants concern, and so, it seems to us unreasonable to treat that as a factor against the appellant in considering the financial position of the appellant. Sri Aggarwal contends that the finding thus recorded by the tribunal has vitiated its ultimate decision; and we are not prepared to hold that criticism made by Sri Aggarwal is without any substance.The tribunal did realize that the appellant is not as prosperous as Rajkamal Kala Mandir, but took the view that"so long as the increased burden that would be entailed by its paying the same wages as are paid by Rajkamal Kala Mandir can be safely borne by it, it must pay them."8. It is to be regretted that the tribunal made this finding without examining the relevant figures which had been produced before it. It is hardly necessary to emphasize that in dealing with a claim for revision of wages which is generally complex and complicated, having regard to the categories of employees engaged in an industrial undertaking, industrial adjudication should not be content with making general observations only. It must examine the facts and figures relating to the financial position of the establishment concerned, compare the said position with the financial position of comparable concerns, enquire what would be the total impact of the additional burden of the revised wage structure. The failure of the tribunal to adopt such a course constitutes yet another serious infirmity in its approach.The record shows that several statements were produced by the appellant in respect of the losses incurred by it and the resulting unsatisfactory financial position in which it was placed. The tribunal has, no doubt, just referred to one of these statements, Ex. C. 3. It has also referred to Ex. C. 1, on which the respondents relied. But no attempt appears to have been made by the tribunal to asses the extent of the losses and determine the true financial position of the appellant at the time of the award.Exhibit L. 1 collectively gives details about the financial position of the appellant from 1951 onwards. If these statements are true and correct, it would tend to support the appellants case that financially it is not a prosperous concern. Exhibit 1 gives details of pictures which failed and thereby caused loss to the appellant. Exhibits G and H give details about the extra financial load which would be imposed upon the appellant if Rajkamal Kala Mandir wage-structure was applied to its employees. It would have been much better if the tribunal had indicated in its ward that it applied its mind to these figures and had recorded its conclusions more concretely in regard to the financial ability of the appellant to race the additional burden.9. In this connection, it may not be irrelevant to refer to two awards recently pronounced by the tribunal to which Sri Aggarwal invited our attention. It is true that we do not generally permit the appellant to produce additional evidence in appeal; but since we are remanding this case, we thought it would be relevant to indicate the point made by Sri Aggarwal by reference to the two recent awards. In Reference I.T. No. 272 of 1964, the present tribunal has pronounced an award in the case of Filmalaya (Private), Ltd. Similarly in Reference I.T. No. 150 of 1962, the present tribunal itself has pronounced its award in the Famous Cine Laboratories and Studios. According to the appellant, these concerns can well be regarded as comparable concerns; and Sri Aggarwals contention is that the wage-structure prescribed by these two awards is much lower than the wage structure which has been prescribed for the appellant by the award under appeal.Having regard to the infirmities in the award to which we have just referred, and having regard to the fact that the award is open to the criticism that the tribunal has not applied its mind to the evidence adduced by the appellant and has not made any concrete, definite and material findings, we think it is necessary to set aside the order under appeal. | 1[ds]In our opinion, Sri Aggarwals contention isand must be upheld.In considering the problem of the revision of thethe tribunal has no doubt referred to the true legal position which governs the decision of such questions. It has observed that the financial position of the employer is one of the relevant factors which has to be properly considered before an appreciable revision in thecan be ordered. It, however, proceeded to revise themainly by reference to Sawarkar award in an industrial dispute between Rajkamal Kala Mandir and its employees. The basis for adopting the said award as a guide obviously appears to be that Rajkamal Kala Mandir is a comparable concern, and so, the award recently pronounced in an industrial dispute of the said concern can be safely taken into account as a guide. It is plain that this assumption is notAs the award pronounced by the tribunal itself points out, there are several material particulars in which the Rajkamal Kala Mandir is in a much better position than the appellant. That is one infirmity in the approach adopted by theis, however, clear that too much importance cannot be attached to the criticism made by the auditors, because in so far as one can judge, these comments appear to have been made by the auditors from the point of view of correctIt is not easy to see how these comments can be pressed into service for the general and broad contention that the appellants balance sheets are unreliable.In regard to the comments made by Sri Meher, the position is exactly the same. It appears that when Sri Meher was dealing with the respondents claim for bonus, some relevant evidence had been withheld by the appellant from Sri Meher, and Sri Meher came to the conclusion that the payments in respect of which material evidence had not been produced, could not be deemed to have been made. This limited criticism cannot support the general contention that the balance sheets produced for subsequent years are untrustworthy. It may, in this connexion, be relevant to point out that the award pronounced by Sri Meher in the said bonus dispute was challenged before this Court by special leave, and the appeal pending in this Court was ultimately compromised by the parties, the respondents agreeing to take one months bonus instead of two months which had been awarded by Sri Meher.5. The finding which the tribunal appears to have made in the present proceedings in regard to the character of the balance sheets is very vague and gives us no indication as to what extent the tribunal was prepared to accept the balance sheets as reliableNow, it is clear that in concrete terms, this statement means nothing at all. The failure of the tribunal to consider the balance sheets and arrive at its own decision as to the financial position of the appellant in fairly precise terms is another infirmity from which the award suffers.6. The tribunal has no doubt taken note of the fact that the appellant was not in a very flourishing condition but it thought that it was"a part of larger organization and group of industries; its directors are also the directors of Bharat Barrel and Drum Manufacturing Company (Private), Ltd., Bombay, and Prakash Cotton Mills, (Private), Ltd., Bombay."7. It is surprising that the tribunal should have made such a sweeping observation without any evidence on the record. Besides, we do not see the relevance or materiality of the consideration that the directors of the appellant are also the directors of other concerns. When industrial adjudication refers to an establishment as a part of a larger organization, it generally means that the establishment is a part of a larger organization carrying on the same or similar industry, and that the establishment concerned is an integral part of the said larger organization. In the present case, the mills of which some of the directors of the appellant happened to be the directors, are not and cannot be integrally connected with the appellants concern, and so, it seems to us unreasonable to treat that as a factor against the appellant in considering the financial position of the appellant. Sri Aggarwal contends that the finding thus recorded by the tribunal has vitiated its ultimate decision; and we are not prepared to hold that criticism made by Sri Aggarwal is without any substance.It is to be regretted that the tribunal made this finding without examining the relevant figures which had been produced before it. It is hardly necessary to emphasize that in dealing with a claim for revision of wages which is generally complex and complicated, having regard to the categories of employees engaged in an industrial undertaking, industrial adjudication should not be content with making general observations only. It must examine the facts and figures relating to the financial position of the establishment concerned, compare the said position with the financial position of comparable concerns, enquire what would be the total impact of the additional burden of the revised wage structure. The failure of the tribunal to adopt such a course constitutes yet another serious infirmity in its approach.The record shows that several statements were produced by the appellant in respect of the losses incurred by it and the resulting unsatisfactory financial position in which it was placed. The tribunal has, no doubt, just referred to one of these statements, Ex. C. 3. It has also referred to Ex. C. 1, on which the respondents relied. But no attempt appears to have been made by the tribunal to asses the extent of the losses and determine the true financial position of the appellant at the time of the award.Exhibit L. 1 collectively gives details about the financial position of the appellant from 1951 onwards. If these statements are true and correct, it would tend to support the appellants case that financially it is not a prosperous concern. Exhibit 1 gives details of pictures which failed and thereby caused loss to the appellant. Exhibits G and H give details about the extra financial load which would be imposed upon the appellant if Rajkamal Kala Mandirwas applied to its employees. It would have been much better if the tribunal had indicated in its ward that it applied its mind to these figures and had recorded its conclusions more concretely in regard to the financial ability of the appellant to race the additional burden.It is true that we do not generally permit the appellant to produce additional evidence in appeal; but since we are remanding this case, we thought it would be relevant to indicate the point made by Sri Aggarwal by reference to the two recent awards. In Reference I.T. No. 272 of 1964, the present tribunal has pronounced an award in the case of Filmalaya (Private), Ltd. Similarly in Reference I.T. No. 150 of 1962, the present tribunal itself has pronounced its award in the Famous Cine Laboratories and Studios.regard to the infirmities in the award to which we have just referred, and having regard to the fact that the award is open to the criticism that the tribunal has not applied its mind to the evidence adduced by the appellant and has not made any concrete, definite and material findings, we think it is necessary to set aside the order under appeal. | 1 | 1,938 | 1,319 | ### 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 parties, the respondents agreeing to take one months bonus instead of two months which had been awarded by Sri Meher.5. The finding which the tribunal appears to have made in the present proceedings in regard to the character of the balance sheets is very vague and gives us no indication as to what extent the tribunal was prepared to accept the balance sheets as reliable :"For reasons already discussed, " says the tribunal, "implicit trust cannot be placed on some figures of profit and loss submitted and the balance sheets produced for judging its true financial position."Now, it is clear that in concrete terms, this statement means nothing at all. The failure of the tribunal to consider the balance sheets and arrive at its own decision as to the financial position of the appellant in fairly precise terms is another infirmity from which the award suffers.6. The tribunal has no doubt taken note of the fact that the appellant was not in a very flourishing condition but it thought that it was"a part of larger organization and group of industries; its directors are also the directors of Bharat Barrel and Drum Manufacturing Company (Private), Ltd., Bombay, and Prakash Cotton Mills, (Private), Ltd., Bombay."7. It is surprising that the tribunal should have made such a sweeping observation without any evidence on the record. Besides, we do not see the relevance or materiality of the consideration that the directors of the appellant are also the directors of other concerns. When industrial adjudication refers to an establishment as a part of a larger organization, it generally means that the establishment is a part of a larger organization carrying on the same or similar industry, and that the establishment concerned is an integral part of the said larger organization. In the present case, the mills of which some of the directors of the appellant happened to be the directors, are not and cannot be integrally connected with the appellants concern, and so, it seems to us unreasonable to treat that as a factor against the appellant in considering the financial position of the appellant. Sri Aggarwal contends that the finding thus recorded by the tribunal has vitiated its ultimate decision; and we are not prepared to hold that criticism made by Sri Aggarwal is without any substance.The tribunal did realize that the appellant is not as prosperous as Rajkamal Kala Mandir, but took the view that"so long as the increased burden that would be entailed by its paying the same wages as are paid by Rajkamal Kala Mandir can be safely borne by it, it must pay them."8. It is to be regretted that the tribunal made this finding without examining the relevant figures which had been produced before it. It is hardly necessary to emphasize that in dealing with a claim for revision of wages which is generally complex and complicated, having regard to the categories of employees engaged in an industrial undertaking, industrial adjudication should not be content with making general observations only. It must examine the facts and figures relating to the financial position of the establishment concerned, compare the said position with the financial position of comparable concerns, enquire what would be the total impact of the additional burden of the revised wage structure. The failure of the tribunal to adopt such a course constitutes yet another serious infirmity in its approach.The record shows that several statements were produced by the appellant in respect of the losses incurred by it and the resulting unsatisfactory financial position in which it was placed. The tribunal has, no doubt, just referred to one of these statements, Ex. C. 3. It has also referred to Ex. C. 1, on which the respondents relied. But no attempt appears to have been made by the tribunal to asses the extent of the losses and determine the true financial position of the appellant at the time of the award.Exhibit L. 1 collectively gives details about the financial position of the appellant from 1951 onwards. If these statements are true and correct, it would tend to support the appellants case that financially it is not a prosperous concern. Exhibit 1 gives details of pictures which failed and thereby caused loss to the appellant. Exhibits G and H give details about the extra financial load which would be imposed upon the appellant if Rajkamal Kala Mandir wage-structure was applied to its employees. It would have been much better if the tribunal had indicated in its ward that it applied its mind to these figures and had recorded its conclusions more concretely in regard to the financial ability of the appellant to race the additional burden.9. In this connection, it may not be irrelevant to refer to two awards recently pronounced by the tribunal to which Sri Aggarwal invited our attention. It is true that we do not generally permit the appellant to produce additional evidence in appeal; but since we are remanding this case, we thought it would be relevant to indicate the point made by Sri Aggarwal by reference to the two recent awards. In Reference I.T. No. 272 of 1964, the present tribunal has pronounced an award in the case of Filmalaya (Private), Ltd. Similarly in Reference I.T. No. 150 of 1962, the present tribunal itself has pronounced its award in the Famous Cine Laboratories and Studios. According to the appellant, these concerns can well be regarded as comparable concerns; and Sri Aggarwals contention is that the wage-structure prescribed by these two awards is much lower than the wage structure which has been prescribed for the appellant by the award under appeal.Having regard to the infirmities in the award to which we have just referred, and having regard to the fact that the award is open to the criticism that the tribunal has not applied its mind to the evidence adduced by the appellant and has not made any concrete, definite and material findings, we think it is necessary to set aside the order under appeal.
### Response:
1
### Explanation:
point of view of correctIt is not easy to see how these comments can be pressed into service for the general and broad contention that the appellants balance sheets are unreliable.In regard to the comments made by Sri Meher, the position is exactly the same. It appears that when Sri Meher was dealing with the respondents claim for bonus, some relevant evidence had been withheld by the appellant from Sri Meher, and Sri Meher came to the conclusion that the payments in respect of which material evidence had not been produced, could not be deemed to have been made. This limited criticism cannot support the general contention that the balance sheets produced for subsequent years are untrustworthy. It may, in this connexion, be relevant to point out that the award pronounced by Sri Meher in the said bonus dispute was challenged before this Court by special leave, and the appeal pending in this Court was ultimately compromised by the parties, the respondents agreeing to take one months bonus instead of two months which had been awarded by Sri Meher.5. The finding which the tribunal appears to have made in the present proceedings in regard to the character of the balance sheets is very vague and gives us no indication as to what extent the tribunal was prepared to accept the balance sheets as reliableNow, it is clear that in concrete terms, this statement means nothing at all. The failure of the tribunal to consider the balance sheets and arrive at its own decision as to the financial position of the appellant in fairly precise terms is another infirmity from which the award suffers.6. The tribunal has no doubt taken note of the fact that the appellant was not in a very flourishing condition but it thought that it was"a part of larger organization and group of industries; its directors are also the directors of Bharat Barrel and Drum Manufacturing Company (Private), Ltd., Bombay, and Prakash Cotton Mills, (Private), Ltd., Bombay."7. It is surprising that the tribunal should have made such a sweeping observation without any evidence on the record. Besides, we do not see the relevance or materiality of the consideration that the directors of the appellant are also the directors of other concerns. When industrial adjudication refers to an establishment as a part of a larger organization, it generally means that the establishment is a part of a larger organization carrying on the same or similar industry, and that the establishment concerned is an integral part of the said larger organization. In the present case, the mills of which some of the directors of the appellant happened to be the directors, are not and cannot be integrally connected with the appellants concern, and so, it seems to us unreasonable to treat that as a factor against the appellant in considering the financial position of the appellant. Sri Aggarwal contends that the finding thus recorded by the tribunal has vitiated its ultimate decision; and we are not prepared to hold that criticism made by Sri Aggarwal is without any substance.It is to be regretted that the tribunal made this finding without examining the relevant figures which had been produced before it. It is hardly necessary to emphasize that in dealing with a claim for revision of wages which is generally complex and complicated, having regard to the categories of employees engaged in an industrial undertaking, industrial adjudication should not be content with making general observations only. It must examine the facts and figures relating to the financial position of the establishment concerned, compare the said position with the financial position of comparable concerns, enquire what would be the total impact of the additional burden of the revised wage structure. The failure of the tribunal to adopt such a course constitutes yet another serious infirmity in its approach.The record shows that several statements were produced by the appellant in respect of the losses incurred by it and the resulting unsatisfactory financial position in which it was placed. The tribunal has, no doubt, just referred to one of these statements, Ex. C. 3. It has also referred to Ex. C. 1, on which the respondents relied. But no attempt appears to have been made by the tribunal to asses the extent of the losses and determine the true financial position of the appellant at the time of the award.Exhibit L. 1 collectively gives details about the financial position of the appellant from 1951 onwards. If these statements are true and correct, it would tend to support the appellants case that financially it is not a prosperous concern. Exhibit 1 gives details of pictures which failed and thereby caused loss to the appellant. Exhibits G and H give details about the extra financial load which would be imposed upon the appellant if Rajkamal Kala Mandirwas applied to its employees. It would have been much better if the tribunal had indicated in its ward that it applied its mind to these figures and had recorded its conclusions more concretely in regard to the financial ability of the appellant to race the additional burden.It is true that we do not generally permit the appellant to produce additional evidence in appeal; but since we are remanding this case, we thought it would be relevant to indicate the point made by Sri Aggarwal by reference to the two recent awards. In Reference I.T. No. 272 of 1964, the present tribunal has pronounced an award in the case of Filmalaya (Private), Ltd. Similarly in Reference I.T. No. 150 of 1962, the present tribunal itself has pronounced its award in the Famous Cine Laboratories and Studios.regard to the infirmities in the award to which we have just referred, and having regard to the fact that the award is open to the criticism that the tribunal has not applied its mind to the evidence adduced by the appellant and has not made any concrete, definite and material findings, we think it is necessary to set aside the order under appeal.
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OFFICIAL LIQUIDATOR, M/S. METALLIC SOAPS & CHEMICALS (PVT.) LTD Vs. MANAGER, KARNATAKA STATE FINANCIAL CORPORATION | a financial corporation or the Court which has been approached under Section 31 of the SFC Act to sell the assets may not be taken away, but the same stands restricted by the requirement of the Official Liquidator being associated with it, giving the Company Court the right to ensure that the distribution of the assets in terms of Section 529-A of the Companies Act takes place. In the case on hand, admittedly, the appellants have not set in motion any proceeding under the SFC Act. What we have is only a liquidation proceeding pending and the secured creditors, the financial corporations approaching the company Court for permission to stand outside the winding up and to sell the properties of the company-in-liquidation. The Company Court has rightly directed that the sale be held in association with the Official Liquidator representing the workmen and that the proceeds will be held by the Official Liquidator until they are distributed in terms of Section 529-A of the Companies Act under its supervision. The directions thus, made, clearly are consistent with the provisions of the relevant Acts and the views expressed by this Court in the decisions referred to above. In this situation, we find no reason to interfere with the decision of the High Court. We clarify that there is no inconsistency between the decisions in Allahabad Bank vs. Canara Bank [(2000) 4 SCC 406] and in International Coach Builders Ltd. vs. Karnataka State Financial Corpn.[(2003) 10 SCC 482] in respect of the applicability of Sections 529 and 529-A of the Companies Act in the matter of distribution among the creditors. The right to sell under the SFC Act or under the Recovery of Debts Act by a creditor coming within those Acts and standing outside the winding up, is different from the distribution of the proceeds of the sale of the security. The distribution in a case where the debtor is a company in the process of being wound up, can only be in terms of Section 529A read with Section 529 of the Companies Act. After all, the Liquidator represents the entire body of creditors and also holds a right on behalf of the workers to have a distribution pari passu with the secured creditors and the duty for further distribution of the proceeds on the basis of the preferences contained in Section 530 of the Companies Act under the directions of the Company Court. In other words, the distribution of the sale proceeds under the direction of the Company Court is his responsibility. To ensure the proper working out of the scheme of distribution, it is necessary to associate the Official Liquidator with the process of sale so that he can ensure, in the light of the directions of the company Court, that a proper price is fetched for the assets of the company-inliquidation. It was in that context that the rights of the Official Liquidator were discussed in International Coach Builders Ltd. The Debts Recovery Tribunal and the District Court entertaining an application under Section 31 of the SFC Act should issue notice to the Liquidator and hear him before ordering a sale, as the representative of the creditors in general. 8. Learned senior counsel appearing for respondent No. 1 thus, emphasised that in the aforesaid given facts, no action under the SFC Act had been taken till that time, nor was the winding up proceedings commenced with the Official Liquidator being appointed. The object, it was submitted, was to associate the Official Liquidator with the sale. 9. Learned senior counsel also referred to Bank of Maharashtra vs. Pandurang Keshav Gorwardkar & Ors. [2013 (7) SCC 754 ], Laxmi Fibres Limited vs. Andhra Pradesh Industrial Development Corporation Ltd. and Ors. [2015 (16) SCC 464 ] and Pegasus Assets Reconstruction P. Ltd. vs. Haryana Concast Ltd. & Anr. [2016 (4) SCC 47 ] to advance the proposition that the ultimate object was only association of the Official Liquidator for purposes of distribution of the assets of company in liquidation in terms of section 529A of the Companies Act. 10. At the conclusion of hearing, what has come to light, is that neither any claim of the workmen have been invited nor are pending with the Official Liquidator. Thus, for over 25 years nothing has been done by the Official Liquidator in this behalf while merely asserting a theoretical right of pari passu right of the workmen with respondent No. 1 corporation. 11. On a perusal of the legal provisions expounded before us, we have no doubt that the role of the official liquidator and his association with the sale of the assets, where action is taken under the SFC Act, is to ensure that a proper price is obtained for the assets sold so as to protect the rights of the other secured creditors. In this behalf, we may note the judgment of this Court in Bakemans Industries Pvt. Ltd. vs. New Cawnpore Flour Mills & Ors. [2008 (15) SCC 1 ] where it has been categorically opined that the provisions of Section 29 of the SFC Act, that being a special statute, would prevail over the general powers of the Company Judge under the Companies Act. 12. Learned senior counsel for respondent No. 1 fairly concedes that were any verified dues of the workmen to be paid, respondent No. 1 would be liable for the same to the extent of pari passu rights over the proceeds realised from respondent No.2. In fact, even the impugned order has issued a direction in terms of paragraph 4 that the sale proceeds are to be distributed in terms of Section 529A and Section 529 of the Companies Act. 13. We are, thus, of the view that the rights of the workmen, as and when the Official Liquidator verifies the dues, are fully protected as their rights would be pari passu with the rights of respondent No. 1 so far as the distribution of sale proceeds realised from respondent No. 2 are concerned. | 0[ds]7. A perusal of the impugned order shows that the reasoning of the Division Bench is predicated on the judgment of this Court in Rajasthan State Financial Corporation and Anr. vs. Official Liquidator and Anr. [2005 (8) SCC 190 ].17. Thus, on the authorities what emerges is that once a winding-up proceeding has commenced and the Liquidator is put in charge of the assets of the company being wound up, the distribution of the proceeds of the sale of the assets held at the instance of the financial institutions coming under the Recovery of Debts Act or of financial corporations coming under the SFC Act, can only be with the association of the Official Liquidator and under the supervision of the Company Court. The right of a financial institution or of the Recovery Tribunal or that of a financial corporation or the Court which has been approached under Section 31 of the SFC Act to sell the assets may not be taken away, but the same stands restricted by the requirement of the Official Liquidator being associated with it, giving the Company Court the right to ensure that the distribution of the assets in terms of Section 529-A of the Companies Act takes place. In the case on hand, admittedly, the appellants have not set in motion any proceeding under the SFC Act. What we have is only a liquidation proceeding pending and the secured creditors, the financial corporations approaching the company Court for permission to stand outside the winding up and to sell the properties of the company-in-liquidation. The Company Court has rightly directed that the sale be held in association with the Official Liquidator representing the workmen and that the proceeds will be held by the Official Liquidator until they are distributed in terms of Section 529-A of the Companies Act under its supervision. The directions thus, made, clearly are consistent with the provisions of the relevant Acts and the views expressed by this Court in the decisions referred to above. In this situation, we find no reason to interfere with the decision of the High Court. We clarify that there is no inconsistency between the decisions in Allahabad Bank vs. Canara Bank [(2000) 4 SCC 406] and in International Coach Builders Ltd. vs. Karnataka State Financial Corpn.[(2003) 10 SCC 482] in respect of the applicability of Sections 529 and 529-A of the Companies Act in the matter of distribution among the creditors. The right to sell under the SFC Act or under the Recovery of Debts Act by a creditor coming within those Acts and standing outside the winding up, is different from the distribution of the proceeds of the sale of the security. The distribution in a case where the debtor is a company in the process of being wound up, can only be in terms of Section 529A read with Section 529 of the Companies Act. After all, the Liquidator represents the entire body of creditors and also holds a right on behalf of the workers to have a distribution pari passu with the secured creditors and the duty for further distribution of the proceeds on the basis of the preferences contained in Section 530 of the Companies Act under the directions of the Company Court. In other words, the distribution of the sale proceeds under the direction of the Company Court is his responsibility. To ensure the proper working out of the scheme of distribution, it is necessary to associate the Official Liquidator with the process of sale so that he can ensure, in the light of the directions of the company Court, that a proper price is fetched for the assets of the company-inliquidation. It was in that context that the rights of the Official Liquidator were discussed in International Coach Builders Ltd. The Debts Recovery Tribunal and the District Court entertaining an application under Section 31 of the SFC Act should issue notice to the Liquidator and hear him before ordering a sale, as the representative of the creditors in general.10. At the conclusion of hearing, what has come to light, is that neither any claim of the workmen have been invited nor are pending with the Official Liquidator. Thus, for over 25 years nothing has been done by the Official Liquidator in this behalf while merely asserting a theoretical right of pari passu right of the workmen with respondent No. 1 corporation.11. On a perusal of the legal provisions expounded before us, we have no doubt that the role of the official liquidator and his association with the sale of the assets, where action is taken under the SFC Act, is to ensure that a proper price is obtained for the assets sold so as to protect the rights of the other secured creditors. In this behalf, we may note the judgment of this Court in Bakemans Industries Pvt. Ltd. vs. New Cawnpore Flour Mills & Ors. [2008 (15) SCC 1 ] where it has been categorically opined that the provisions of Section 29 of the SFC Act, that being a special statute, would prevail over the general powers of the Company Judge under the Companies Act.13. We are, thus, of the view that the rights of the workmen, as and when the Official Liquidator verifies the dues, are fully protected as their rights would be pari passu with the rights of respondent No. 1 so far as the distribution of sale proceeds realised from respondent No. 2 are concerned. | 0 | 3,455 | 991 | ### Instruction:
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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a financial corporation or the Court which has been approached under Section 31 of the SFC Act to sell the assets may not be taken away, but the same stands restricted by the requirement of the Official Liquidator being associated with it, giving the Company Court the right to ensure that the distribution of the assets in terms of Section 529-A of the Companies Act takes place. In the case on hand, admittedly, the appellants have not set in motion any proceeding under the SFC Act. What we have is only a liquidation proceeding pending and the secured creditors, the financial corporations approaching the company Court for permission to stand outside the winding up and to sell the properties of the company-in-liquidation. The Company Court has rightly directed that the sale be held in association with the Official Liquidator representing the workmen and that the proceeds will be held by the Official Liquidator until they are distributed in terms of Section 529-A of the Companies Act under its supervision. The directions thus, made, clearly are consistent with the provisions of the relevant Acts and the views expressed by this Court in the decisions referred to above. In this situation, we find no reason to interfere with the decision of the High Court. We clarify that there is no inconsistency between the decisions in Allahabad Bank vs. Canara Bank [(2000) 4 SCC 406] and in International Coach Builders Ltd. vs. Karnataka State Financial Corpn.[(2003) 10 SCC 482] in respect of the applicability of Sections 529 and 529-A of the Companies Act in the matter of distribution among the creditors. The right to sell under the SFC Act or under the Recovery of Debts Act by a creditor coming within those Acts and standing outside the winding up, is different from the distribution of the proceeds of the sale of the security. The distribution in a case where the debtor is a company in the process of being wound up, can only be in terms of Section 529A read with Section 529 of the Companies Act. After all, the Liquidator represents the entire body of creditors and also holds a right on behalf of the workers to have a distribution pari passu with the secured creditors and the duty for further distribution of the proceeds on the basis of the preferences contained in Section 530 of the Companies Act under the directions of the Company Court. In other words, the distribution of the sale proceeds under the direction of the Company Court is his responsibility. To ensure the proper working out of the scheme of distribution, it is necessary to associate the Official Liquidator with the process of sale so that he can ensure, in the light of the directions of the company Court, that a proper price is fetched for the assets of the company-inliquidation. It was in that context that the rights of the Official Liquidator were discussed in International Coach Builders Ltd. The Debts Recovery Tribunal and the District Court entertaining an application under Section 31 of the SFC Act should issue notice to the Liquidator and hear him before ordering a sale, as the representative of the creditors in general. 8. Learned senior counsel appearing for respondent No. 1 thus, emphasised that in the aforesaid given facts, no action under the SFC Act had been taken till that time, nor was the winding up proceedings commenced with the Official Liquidator being appointed. The object, it was submitted, was to associate the Official Liquidator with the sale. 9. Learned senior counsel also referred to Bank of Maharashtra vs. Pandurang Keshav Gorwardkar & Ors. [2013 (7) SCC 754 ], Laxmi Fibres Limited vs. Andhra Pradesh Industrial Development Corporation Ltd. and Ors. [2015 (16) SCC 464 ] and Pegasus Assets Reconstruction P. Ltd. vs. Haryana Concast Ltd. & Anr. [2016 (4) SCC 47 ] to advance the proposition that the ultimate object was only association of the Official Liquidator for purposes of distribution of the assets of company in liquidation in terms of section 529A of the Companies Act. 10. At the conclusion of hearing, what has come to light, is that neither any claim of the workmen have been invited nor are pending with the Official Liquidator. Thus, for over 25 years nothing has been done by the Official Liquidator in this behalf while merely asserting a theoretical right of pari passu right of the workmen with respondent No. 1 corporation. 11. On a perusal of the legal provisions expounded before us, we have no doubt that the role of the official liquidator and his association with the sale of the assets, where action is taken under the SFC Act, is to ensure that a proper price is obtained for the assets sold so as to protect the rights of the other secured creditors. In this behalf, we may note the judgment of this Court in Bakemans Industries Pvt. Ltd. vs. New Cawnpore Flour Mills & Ors. [2008 (15) SCC 1 ] where it has been categorically opined that the provisions of Section 29 of the SFC Act, that being a special statute, would prevail over the general powers of the Company Judge under the Companies Act. 12. Learned senior counsel for respondent No. 1 fairly concedes that were any verified dues of the workmen to be paid, respondent No. 1 would be liable for the same to the extent of pari passu rights over the proceeds realised from respondent No.2. In fact, even the impugned order has issued a direction in terms of paragraph 4 that the sale proceeds are to be distributed in terms of Section 529A and Section 529 of the Companies Act. 13. We are, thus, of the view that the rights of the workmen, as and when the Official Liquidator verifies the dues, are fully protected as their rights would be pari passu with the rights of respondent No. 1 so far as the distribution of sale proceeds realised from respondent No. 2 are concerned.
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7. A perusal of the impugned order shows that the reasoning of the Division Bench is predicated on the judgment of this Court in Rajasthan State Financial Corporation and Anr. vs. Official Liquidator and Anr. [2005 (8) SCC 190 ].17. Thus, on the authorities what emerges is that once a winding-up proceeding has commenced and the Liquidator is put in charge of the assets of the company being wound up, the distribution of the proceeds of the sale of the assets held at the instance of the financial institutions coming under the Recovery of Debts Act or of financial corporations coming under the SFC Act, can only be with the association of the Official Liquidator and under the supervision of the Company Court. The right of a financial institution or of the Recovery Tribunal or that of a financial corporation or the Court which has been approached under Section 31 of the SFC Act to sell the assets may not be taken away, but the same stands restricted by the requirement of the Official Liquidator being associated with it, giving the Company Court the right to ensure that the distribution of the assets in terms of Section 529-A of the Companies Act takes place. In the case on hand, admittedly, the appellants have not set in motion any proceeding under the SFC Act. What we have is only a liquidation proceeding pending and the secured creditors, the financial corporations approaching the company Court for permission to stand outside the winding up and to sell the properties of the company-in-liquidation. The Company Court has rightly directed that the sale be held in association with the Official Liquidator representing the workmen and that the proceeds will be held by the Official Liquidator until they are distributed in terms of Section 529-A of the Companies Act under its supervision. The directions thus, made, clearly are consistent with the provisions of the relevant Acts and the views expressed by this Court in the decisions referred to above. In this situation, we find no reason to interfere with the decision of the High Court. We clarify that there is no inconsistency between the decisions in Allahabad Bank vs. Canara Bank [(2000) 4 SCC 406] and in International Coach Builders Ltd. vs. Karnataka State Financial Corpn.[(2003) 10 SCC 482] in respect of the applicability of Sections 529 and 529-A of the Companies Act in the matter of distribution among the creditors. The right to sell under the SFC Act or under the Recovery of Debts Act by a creditor coming within those Acts and standing outside the winding up, is different from the distribution of the proceeds of the sale of the security. The distribution in a case where the debtor is a company in the process of being wound up, can only be in terms of Section 529A read with Section 529 of the Companies Act. After all, the Liquidator represents the entire body of creditors and also holds a right on behalf of the workers to have a distribution pari passu with the secured creditors and the duty for further distribution of the proceeds on the basis of the preferences contained in Section 530 of the Companies Act under the directions of the Company Court. In other words, the distribution of the sale proceeds under the direction of the Company Court is his responsibility. To ensure the proper working out of the scheme of distribution, it is necessary to associate the Official Liquidator with the process of sale so that he can ensure, in the light of the directions of the company Court, that a proper price is fetched for the assets of the company-inliquidation. It was in that context that the rights of the Official Liquidator were discussed in International Coach Builders Ltd. The Debts Recovery Tribunal and the District Court entertaining an application under Section 31 of the SFC Act should issue notice to the Liquidator and hear him before ordering a sale, as the representative of the creditors in general.10. At the conclusion of hearing, what has come to light, is that neither any claim of the workmen have been invited nor are pending with the Official Liquidator. Thus, for over 25 years nothing has been done by the Official Liquidator in this behalf while merely asserting a theoretical right of pari passu right of the workmen with respondent No. 1 corporation.11. On a perusal of the legal provisions expounded before us, we have no doubt that the role of the official liquidator and his association with the sale of the assets, where action is taken under the SFC Act, is to ensure that a proper price is obtained for the assets sold so as to protect the rights of the other secured creditors. In this behalf, we may note the judgment of this Court in Bakemans Industries Pvt. Ltd. vs. New Cawnpore Flour Mills & Ors. [2008 (15) SCC 1 ] where it has been categorically opined that the provisions of Section 29 of the SFC Act, that being a special statute, would prevail over the general powers of the Company Judge under the Companies Act.13. We are, thus, of the view that the rights of the workmen, as and when the Official Liquidator verifies the dues, are fully protected as their rights would be pari passu with the rights of respondent No. 1 so far as the distribution of sale proceeds realised from respondent No. 2 are concerned.
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M/S. Ram Narain Sons Ltd Vs. Asst. Commissioner Of Sales Tax And Others(And Other Case | article 286(1)(a) read with the Explanation.Apart from the construction thus put upon the several clauses of article 286 by the majority of the Judges in The Bengal Immunity Co.s Appeal as above, the terms of the Proviso itself make it abundantly clear that the proviso is meant only to lift the ban under article 286(2) and no other. It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. Even if the non-obstante clause : "Notwithstanding that the imposition of such tax is contrary to the provisions of this clause" : had not been enacted in the proviso, the proviso could only have been construed as operating upon the field enacted in article 286(2) and could not be extended to any of the other provisions of article 286. The non-obstante clause, however, makes it abundantly and further clear and states in explicit terms that it is enacted only with reference to "this clause", i.e., article 286(2). The Presidents order may direct that any tax on the sale or purchase of goods which was being lawfully levied by the Government of any State immediately before the commencement of the Constitution was to continue to be levied until 31st March, 1951, but the effect of that order was to raise the ban in so far as it was imposed by the provisions of "this clause". The Presidents order, therefore, only lifted the ban in so far as the transactions took place in the course of inter-State trade or commerce and could not be projected into the sphere of any other clause of article 286. It had, therefore, not the effect of lifting the ban which was imposed by article 286(1)(a) and the Explanation thereto, even though the transactions covered by the Explanation to article 286(1)(a) by and large fell within the category of transactions which took place in the course of inter-State trade or commerce. The ban imposed by article 286(1)(a) was independent and separate and could not be lifted by the Presidents order which had operation only in regard to the inter-State character of the transactions. The moment it was determined that the transactions were outside the State by virtue of the Explanation to article 286(1)(a) the ban imposed by article 286(1)(a) attached to the same and could not be lifted by the Presidents order which operated only on the inter-State character of the transactions and saved only those inter-State transactions which did not come within the Explanation.If the contention urged on behalf of the State of Madhya Pradesh is accepted it would mean that we should re-write or amend the proviso to article 286(2) in order to effectuate the supposed intention of the Constitution-makers. The supposed intention of the Constitution-makers was alleged to be to preserve to the State all the taxes on sale or purchase of goods which were being lawfully levied by them immediately before the commencement of the Constitution by having resort to the territorial connection or nexus theory. We have no evidence before us of this supposed intention of the Constitution-makers. Whatever their intention was can only be gathered from the language which they have used and where the language is plain there is no scope whatever for speculation in that behalf. When the Constitution-makers themselves used the words "Notwithstanding that the imposition of such a tax is contrary to the provisions of this clause" it would not be legitimate for us to go behind the plain words and try to read into the proviso something which would involve either a deletion of the non-obstante clause or a re-writing thereof as suggested. Whatever be the effect of our judgment on the treasuries of the exporting or title-State we cannot assist them by reading something into the proviso which is not warranted by any canon of construction. The proviso has reference only to article 286(2) and cannot be projected into any other clause of article 286.6. The untenability of the contentions of the Respondents will be clear from the following illustration :-Suppose the goods are in the State of Madhya Pradesh at the time the contracts of sale of those goods are made in, say, the State of Bombay. Suppose further that the property in the goods has by reason of such sales passed in the State of Bombay but the goods as a direct result of such sales have been delivered for consumption in the State of Madras. According to the Respondents, the Presidents order made under the proviso to article 286(2) saves the transactions from the ban of article 286(1)(a) read with the Explanation. Then the State of Madras will be able to tax by virtue of article 286(1)(a) read with the Explanation or on the nexus theory by reason of the goods being delivered there for consumption; the State of Bombay will be able to tax because the title to the goods passed there; and the State of Madhya Pradesh will also be able to tax under the Explanation II to section 2(g) of the Act because the goods were in the State of Madhya Pradesh at the time when the contracts of sale were made in the State of Bombay. Nobody will say that the Constitution - makers intended to perpetuate multiple taxation of this kind and yet that will be the result if we were to accede to the arguments advanced by the Respondents.The result, therefore, is that so far as the post-Constitution period is concerned the ban which is imposed by article 286(1)(a) and the Explanation thereto cannot be removed by the Presidents order which was issued under the proviso to article 286(2) and the High Court was in error when it construed the proviso to article 286(2) as projecting into the field of article 286(1)(a) and lifting the ban imposed therein. | 1[ds]We are unable to accept this contention. As held by the majority Judges in The Bengal Immunity Co.s Appeal, the bans imposed by article 286 on the taxing powers of the States are independent and separate and each one of them has to be got over before a State Legislature can impose tax on transactions of sale or purchase of goods. These bans have been imposed from differentand, even though the transactions of sale or purchase may in conceivable cases overlap as far as these different view points are concerned, each of those bans is operative and has to be enforced. So far as article 286(1)(a) is concerned, the Explanation determines by the legal fiction created therein the situs of the sale in the case of transactions coming within that category and when a transaction is thus determined to be inside a particular State it necessarily becomes a transaction outside all otherban imposed under article 286(2) is an independent and separate one and looks at the transactions entirely from the point of view of their having taken place in the course oftrade or commerce. Even if such transactions may also fall within the category of transactions covered by article 286(1)(a) and the Explanation thereto or article 286(3), the moment article 286(2) is attracted by reason of the transactions being in the course oftrade or commerce, the ban under article 286(2) operates and such transactions can never be subject to tax at the instance of a State Legislature except in so far as Parliament by law may otherwise provide or such power of taxation is saved by the Presidents order contemplated in the proviso. The ban under article 286(2) may be saved by the Presidents order but that does not affect or lift the ban under article 286(1)(a) read with the Explanation.Apart from the construction thus put upon the several clauses of article 286 by the majority of the Judges in The Bengal Immunity Co.s Appeal as above, the terms of the Proviso itself make it abundantly clear that the proviso is meant only to lift the ban under article 286(2) and no other. It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. Even if theclause : "Notwithstanding that the imposition of such tax is contrary to the provisions of this clause" : had not been enacted in the proviso, the proviso could only have been construed as operating upon the field enacted in article 286(2) and could not be extended to any of the other provisions of article 286. Theclause, however, makes it abundantly and further clear and states in explicit terms that it is enacted only with reference to "this clause", i.e., article 286(2). The Presidents order may direct that any tax on the sale or purchase of goods which was being lawfully levied by the Government of any State immediately before the commencement of the Constitution was to continue to be levied until 31st March, 1951, but the effect of that order was to raise the ban in so far as it was imposed by the provisions of "this clause". The Presidents order, therefore, only lifted the ban in so far as the transactions took place in the course oftrade or commerce and could not be projected into the sphere of any other clause of article 286. It had, therefore, not the effect of lifting the ban which was imposed by article 286(1)(a) and the Explanation thereto, even though the transactions covered by the Explanation to article 286(1)(a) by and large fell within the category of transactions which took place in the course oftrade or commerce. The ban imposed by article 286(1)(a) was independent and separate and could not be lifted by the Presidents order which had operation only in regard to thecharacter of the transactions. The moment it was determined that the transactions were outside the State by virtue of the Explanation to article 286(1)(a) the ban imposed by article 286(1)(a) attached to the same and could not be lifted by the Presidents order which operated only on thecharacter of the transactions and saved only thosetransactions which did not come within the Explanation.If the contention urged on behalf of the State of Madhya Pradesh is accepted it would mean that we shouldor amend the proviso to article 286(2) in order to effectuate the supposed intention of theThe supposed intention of thewas alleged to be to preserve to the State all the taxes on sale or purchase of goods which were being lawfully levied by them immediately before the commencement of the Constitution by having resort to the territorial connection or nexus theory. We have no evidence before us of this supposed intention of theWhatever their intention was can only be gathered from the language which they have used and where the language is plain there is no scope whatever for speculation in that behalf. When thethemselves used the words "Notwithstanding that the imposition of such a tax is contrary to the provisions of this clause" it would not be legitimate for us to go behind the plain words and try to read into the proviso something which would involve either a deletion of theclause or athereof as suggested. Whatever be the effect of our judgment on the treasuries of the exporting orwe cannot assist them by reading something into the proviso which is not warranted by any canon of construction. The proviso has reference only to article 286(2) and cannot be projected into any other clause of articlewill say that the Constitutionmakers intended to perpetuate multiple taxation of this kind and yet that will be the result if we were to accede to the arguments advanced by the Respondents.The result, therefore, is that so far as theperiod is concerned the ban which is imposed by article 286(1)(a) and the Explanation thereto cannot be removed by the Presidents order which was issued under the proviso to article 286(2) and the High Court was in error when it construed the proviso to article 286(2) as projecting into the field of article 286(1)(a) and lifting the ban imposedthese contentions, though they are also relevant to theperiod were not specifically pressed before us because the argument based on the proviso to article 286(2) was considered sufficient to set aside the assessment for that period. They would, however, appropriately arise and be urged by the appellants when the liability to assessment for theperiod is to be determined and if we were to determine that liability we would have to deal with the same. The necessity for doing so is, however, obviated by reason of the fact that the assessment is one composite whole relating to theas well as theperiods and is invalid in toto. There is authority for the proposition that when an assessment consists of a single undivided sum in respect of the totality of the property treated as assessable, the wrongful inclusion in it of certain items of property which by virtue of a provision of law were expressly exempted from taxation renders the assessment invalid inral of Madhya Pradesh did not seriously contest this position and the result, therefore, is that the order of assessment dated the 30th June, 1953, in Civil Appeal No. 132 of 1955 and the order of assessment dated the 9th September, 1953, in Civil Appeal No. 133 of 1955 are liable to be setcontention of the learnedof Madhya Pradesh is untenable. So far as direct supplies to selling agents on orders and direct supplies to merchants on orders covered by items (a) and (b) above are concerned, it was found that these supplies were made to the merchants buying the goods on commission basis or profit on their previous orders, instructions or indents which were either in printed forms or in ordinary letters and the sale prices were realised by sending bills and railway receipts through some scheduled banks. The very fact that the bills and the railway receipts were sent through the scheduled banks went to show that the petitioners reserved the right of disposal of goods covered by those railway receipts and the property in the goods passed in the State of Uttar Pradesh only after the relative bills were either accepted or honoured by the purchasers and the railway receipts delivered by the scheduled banks to them. It is clear, therefore, that in those cases the sales were completed in the State of Uttar Pradesh and were notsales or "inside sales" qua the State of Madhya Pradesh. As regards the direct supplies to destinations other than branches or depots but accounted for against the branches or depots being item (c) above, it was found that the petitioners despatched the goods and billed them to depot managers who were responsible for the collection of the orders and then the railway receipts and bills were sent there. The managers prepared other bills adding incidental or other charges and delivered the railway receipts to the customers to whom the goods were sent from the State of Madhya Pradesh. Here also the despatches of the goods were made from the State of Madhya Pradesh by the petitioners to their depot managers and it was the depot managers who in their turn prepared and submitted their own bills and handed over the railway receipts to the respective customers appropriating the goods themselves to the contracts of sale which had been entered into by them with the latter and completing the sales in the State of Uttar Pradesh. These transactions also were, therefore, sales effected in the State of Uttar Pradesh and did not fall within the category ofsales or "inside sales" qua the State of Madhya Pradesh.The direct supplies to Stations or destinations having branches or depots owned by the proprietors of the firm, Kanpur, Bombay, Lucknow and Faizabad being item (d) above, also were outside sales qua the State of Madhya Pradesh inasmuch as the branch managers asked the petitioners to send stocks of goods to execute the orders which they had obtained from the customers to make their own supplies to them. As a matter of fact it was found that several consolidated indents were placed by the depot managers with the petitioners in respect of the previous orders which had been collected by them and the petitioners supplied the goods to the depots or branches in pursuance of such indents. If this was the true position qua these supplies, these sales also were completed in the State of Uttar Pradesh by the depots or branches supplying the goods in their turn to several customers. There could be no sales as such between the petitioners on the one hand and their depots or branches on the other hand and the State of Madhya Pradesh could certainly not be at all in a position to tax the same.12. The whole theory, therefore, of "inside sales" falls to the ground and the only thing which we are left with is that these transactions weretransactions in which as a direct result of such sales the goods were actually delivered for the purpose of consumption in the State of Uttar Pradesh. The Explanation to article 286(1)(a) determined the State of Uttar Pradesh to be the State in which the sales took place and which alone was entitled to tax these transactions, the State of Madhya Pradesh becoming an "outside" State for the purpose.13. Apart from the ban imposed on the State of Madhya Pradesh under article 286(1)(a) and the Explanation thereto, these transactions were also in the course oftrade or commerce and were hit by the ban of article 286(2). The Presidents order no doubt lifted that ban but was not competent to lift the ban under article 286(1)(a) and the Explanation thereto with the result that in spite of that order the State of Madhya Pradesh was not in a position to impose a tax on these transactions during theperiod.The assessment of these transactions to tax for theperiod, therefore, is invalid and cannot be sustained. The assessment, moreover, is a composite one covering theperiod as well. The case, therefore, falls within our judgment in Civil Appeals Nos. 132, 133 and 137 of 1955 just delivered, and following the reasoning contained therein, we are of the opinion that the order dated the 14th July, 1954, made by the Deputy Commissioner, Sales Tax, Madhya Pradesh, Respondent No. 3, in Sales Tax Appeal No.should be set aside. | 1 | 3,893 | 2,356 | ### Instruction:
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article 286(1)(a) read with the Explanation.Apart from the construction thus put upon the several clauses of article 286 by the majority of the Judges in The Bengal Immunity Co.s Appeal as above, the terms of the Proviso itself make it abundantly clear that the proviso is meant only to lift the ban under article 286(2) and no other. It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. Even if the non-obstante clause : "Notwithstanding that the imposition of such tax is contrary to the provisions of this clause" : had not been enacted in the proviso, the proviso could only have been construed as operating upon the field enacted in article 286(2) and could not be extended to any of the other provisions of article 286. The non-obstante clause, however, makes it abundantly and further clear and states in explicit terms that it is enacted only with reference to "this clause", i.e., article 286(2). The Presidents order may direct that any tax on the sale or purchase of goods which was being lawfully levied by the Government of any State immediately before the commencement of the Constitution was to continue to be levied until 31st March, 1951, but the effect of that order was to raise the ban in so far as it was imposed by the provisions of "this clause". The Presidents order, therefore, only lifted the ban in so far as the transactions took place in the course of inter-State trade or commerce and could not be projected into the sphere of any other clause of article 286. It had, therefore, not the effect of lifting the ban which was imposed by article 286(1)(a) and the Explanation thereto, even though the transactions covered by the Explanation to article 286(1)(a) by and large fell within the category of transactions which took place in the course of inter-State trade or commerce. The ban imposed by article 286(1)(a) was independent and separate and could not be lifted by the Presidents order which had operation only in regard to the inter-State character of the transactions. The moment it was determined that the transactions were outside the State by virtue of the Explanation to article 286(1)(a) the ban imposed by article 286(1)(a) attached to the same and could not be lifted by the Presidents order which operated only on the inter-State character of the transactions and saved only those inter-State transactions which did not come within the Explanation.If the contention urged on behalf of the State of Madhya Pradesh is accepted it would mean that we should re-write or amend the proviso to article 286(2) in order to effectuate the supposed intention of the Constitution-makers. The supposed intention of the Constitution-makers was alleged to be to preserve to the State all the taxes on sale or purchase of goods which were being lawfully levied by them immediately before the commencement of the Constitution by having resort to the territorial connection or nexus theory. We have no evidence before us of this supposed intention of the Constitution-makers. Whatever their intention was can only be gathered from the language which they have used and where the language is plain there is no scope whatever for speculation in that behalf. When the Constitution-makers themselves used the words "Notwithstanding that the imposition of such a tax is contrary to the provisions of this clause" it would not be legitimate for us to go behind the plain words and try to read into the proviso something which would involve either a deletion of the non-obstante clause or a re-writing thereof as suggested. Whatever be the effect of our judgment on the treasuries of the exporting or title-State we cannot assist them by reading something into the proviso which is not warranted by any canon of construction. The proviso has reference only to article 286(2) and cannot be projected into any other clause of article 286.6. The untenability of the contentions of the Respondents will be clear from the following illustration :-Suppose the goods are in the State of Madhya Pradesh at the time the contracts of sale of those goods are made in, say, the State of Bombay. Suppose further that the property in the goods has by reason of such sales passed in the State of Bombay but the goods as a direct result of such sales have been delivered for consumption in the State of Madras. According to the Respondents, the Presidents order made under the proviso to article 286(2) saves the transactions from the ban of article 286(1)(a) read with the Explanation. Then the State of Madras will be able to tax by virtue of article 286(1)(a) read with the Explanation or on the nexus theory by reason of the goods being delivered there for consumption; the State of Bombay will be able to tax because the title to the goods passed there; and the State of Madhya Pradesh will also be able to tax under the Explanation II to section 2(g) of the Act because the goods were in the State of Madhya Pradesh at the time when the contracts of sale were made in the State of Bombay. Nobody will say that the Constitution - makers intended to perpetuate multiple taxation of this kind and yet that will be the result if we were to accede to the arguments advanced by the Respondents.The result, therefore, is that so far as the post-Constitution period is concerned the ban which is imposed by article 286(1)(a) and the Explanation thereto cannot be removed by the Presidents order which was issued under the proviso to article 286(2) and the High Court was in error when it construed the proviso to article 286(2) as projecting into the field of article 286(1)(a) and lifting the ban imposed therein.
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to assessment for theperiod is to be determined and if we were to determine that liability we would have to deal with the same. The necessity for doing so is, however, obviated by reason of the fact that the assessment is one composite whole relating to theas well as theperiods and is invalid in toto. There is authority for the proposition that when an assessment consists of a single undivided sum in respect of the totality of the property treated as assessable, the wrongful inclusion in it of certain items of property which by virtue of a provision of law were expressly exempted from taxation renders the assessment invalid inral of Madhya Pradesh did not seriously contest this position and the result, therefore, is that the order of assessment dated the 30th June, 1953, in Civil Appeal No. 132 of 1955 and the order of assessment dated the 9th September, 1953, in Civil Appeal No. 133 of 1955 are liable to be setcontention of the learnedof Madhya Pradesh is untenable. So far as direct supplies to selling agents on orders and direct supplies to merchants on orders covered by items (a) and (b) above are concerned, it was found that these supplies were made to the merchants buying the goods on commission basis or profit on their previous orders, instructions or indents which were either in printed forms or in ordinary letters and the sale prices were realised by sending bills and railway receipts through some scheduled banks. The very fact that the bills and the railway receipts were sent through the scheduled banks went to show that the petitioners reserved the right of disposal of goods covered by those railway receipts and the property in the goods passed in the State of Uttar Pradesh only after the relative bills were either accepted or honoured by the purchasers and the railway receipts delivered by the scheduled banks to them. It is clear, therefore, that in those cases the sales were completed in the State of Uttar Pradesh and were notsales or "inside sales" qua the State of Madhya Pradesh. As regards the direct supplies to destinations other than branches or depots but accounted for against the branches or depots being item (c) above, it was found that the petitioners despatched the goods and billed them to depot managers who were responsible for the collection of the orders and then the railway receipts and bills were sent there. The managers prepared other bills adding incidental or other charges and delivered the railway receipts to the customers to whom the goods were sent from the State of Madhya Pradesh. Here also the despatches of the goods were made from the State of Madhya Pradesh by the petitioners to their depot managers and it was the depot managers who in their turn prepared and submitted their own bills and handed over the railway receipts to the respective customers appropriating the goods themselves to the contracts of sale which had been entered into by them with the latter and completing the sales in the State of Uttar Pradesh. These transactions also were, therefore, sales effected in the State of Uttar Pradesh and did not fall within the category ofsales or "inside sales" qua the State of Madhya Pradesh.The direct supplies to Stations or destinations having branches or depots owned by the proprietors of the firm, Kanpur, Bombay, Lucknow and Faizabad being item (d) above, also were outside sales qua the State of Madhya Pradesh inasmuch as the branch managers asked the petitioners to send stocks of goods to execute the orders which they had obtained from the customers to make their own supplies to them. As a matter of fact it was found that several consolidated indents were placed by the depot managers with the petitioners in respect of the previous orders which had been collected by them and the petitioners supplied the goods to the depots or branches in pursuance of such indents. If this was the true position qua these supplies, these sales also were completed in the State of Uttar Pradesh by the depots or branches supplying the goods in their turn to several customers. There could be no sales as such between the petitioners on the one hand and their depots or branches on the other hand and the State of Madhya Pradesh could certainly not be at all in a position to tax the same.12. The whole theory, therefore, of "inside sales" falls to the ground and the only thing which we are left with is that these transactions weretransactions in which as a direct result of such sales the goods were actually delivered for the purpose of consumption in the State of Uttar Pradesh. The Explanation to article 286(1)(a) determined the State of Uttar Pradesh to be the State in which the sales took place and which alone was entitled to tax these transactions, the State of Madhya Pradesh becoming an "outside" State for the purpose.13. Apart from the ban imposed on the State of Madhya Pradesh under article 286(1)(a) and the Explanation thereto, these transactions were also in the course oftrade or commerce and were hit by the ban of article 286(2). The Presidents order no doubt lifted that ban but was not competent to lift the ban under article 286(1)(a) and the Explanation thereto with the result that in spite of that order the State of Madhya Pradesh was not in a position to impose a tax on these transactions during theperiod.The assessment of these transactions to tax for theperiod, therefore, is invalid and cannot be sustained. The assessment, moreover, is a composite one covering theperiod as well. The case, therefore, falls within our judgment in Civil Appeals Nos. 132, 133 and 137 of 1955 just delivered, and following the reasoning contained therein, we are of the opinion that the order dated the 14th July, 1954, made by the Deputy Commissioner, Sales Tax, Madhya Pradesh, Respondent No. 3, in Sales Tax Appeal No.should be set aside.
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Management Of Murgugan Mills Ltd Vs. Industrial Tribunal Madras And Anotmr | therefore, held that the industrial tribunal had jurisdiction to entertain the application under S. 33-A in the circumstances. Finally he held that as the tribunal had held on the merits that the charge against the respondent of dereliction of duty was not made out, the writ petition must fail. The appellant then went in appeal to the Division Bench, which upheld the order of the learned Single Judge. Then there was an application for leave to appeal to this Court, which was rejected. The appellant then applied for and obtained special leave from this Court and that is how the matter has come up before us. 5. The right of the employer to terminate the services of his workman under a standing order, like cl.17(a) in the present case, which amounts to a claim "to hire and fire" an employee as the employer pleases and thus completely negatives security of service which has been secured to industrial employees through industrial adjudication, came up for consideration before the Labour Appellate Tribunal in Buckingham and Carnatic Co. Ltd. v. Workers of the Company, 1952 Lab AC 490. The matter then came up before this Court also in the Chartered Bank v. Chartered Bank Employees Union, (1960) 3 SCR 441 : (AIR 1960 SC 919 ) and The Management of U. B. Dutt and Co. v. Workmen of U. B..Dutt and Co., 1962 Supp (2) SCR 822: (AIR 1963 SC 411 ), wherein the view taken by the Labour Appellate Tribunal was approved and it was held that even in a case like the present the requirement of bona fides was essential and if the termination of service was a colourable exercise of the power or as a result of victimisation or unfair labour practice the industrial tribunal would have the jurisdiction to intervene and set aside such termination. The form of the order in such a case is not conclusive and the tribunal can go behind the order to find the reasons which led to the order and then consider for itself whether the termination was a colourable exercise of the power or was a result of victimisation or unfair labour practice. If it came to the conclusion that the termination was a colourable exercise of the power or was a result of victimisation or unfair labour practice it would have the jurisdiction to intervene and set aside such termination.6. The form, therefore, used in the present case for terminating respondents services under cl.17 (a) is not conclusive and the tribunal was justified in enquiring into the reasons which led to such termination; even the Standing Orders provide that an employee can ask for reasons in such a case. Those reasons were given before the tribunal by the appellant, viz., the respondents services were terminated because he deliberately adopted go-slow and was negligent in the discharge of his duty. His services were, therefore terminated for dereliction of duty and so-slow in his work. This clearly amounted to punishment for misconduct and, therefore, to pass an order under cl. 17(a) of the Standing Orders in such circumstances was clearly a colourable exercise of the power to terminate the services of a workman under the provision of the Standing Orders. In those circumstances the tribunal would be justified in going behind the order and deciding for itself whether the termination of the respondents services could be sustained. In the present case, evidence was led before the tribunal in support of the appellants case that the respondent was guilty of dereliction of duty and go-slow it his work. The tribunal has found that this has not been proved. In these circumstances the case was clearly covered by cl. (b) of S. 33 (2) of the Act as the services of the respondent were dispensed with during the pendency of a dispute by meting out the punishment of discharge to him for misconduct. As this was done without complying with the proviso, the termination of the service was rightly set aside.7. It is, however, urged on behalf of the appellant that the tribunal found that the case under S. 33 (2) (b) had not been made out. It also found that the case which had been made out was one under S. 33 (2) (a). It then went onto hold that the proviso applied to S. 33 (2) (a). The appellant contends that the view of ale tribunal that the proviso applied to Section 33 (2) (a) is incorrect and, therefore, the tribunal was not right in entertaining the application under S.33-A and ordering reinstatement of the respondent. It is clear from a bare perusal of S.33 (2) that the proviso thereto only applies to cl. (b) and not to cl.(a) and the tribunal, therefore, was in error when it held that it also applied to cl. (a). But that in our opinion makes no difference in the present case as pointed out by the High Court. The contention of the respondent was that there had been a contravention of S. 33 (2) (b). It was that contention which gave jurisdiction to the tribunal and which the appellant had to meet and it did meet it by producing evidence. That evidence was considered by the tribunal and it found that the appellants contention that the respondent was guilty of dereliction of duty and go-slow had not been made out. In these circumstances even though the tribunal was in error in holding that the proviso to S. 33 (2) applied to cl. (a)thereof also there is no reason for us to interfere with the order passed by the tribunal. As the High Court has rightly pointed out, the case is clearly covered by S. 33 (2) (b) to which the proviso undoubtedly applies. As the proviso was not complied with, the application under S. 33-A could be entertained by the tribunal and the tribunal did entertain it and went into the merits of the charge and came to the conclusion that the charge had not been proved. | 1[ds]7. It is, however, urged on behalf of the appellant that the tribunal found that the case under S. 33 (2) (b) had not been made out. It also found that the case which had been made out was one under S. 33 (2) (a). It then went onto hold that the proviso applied to S. 33 (2) (a). The appellant contends that the view of ale tribunal that the proviso applied to Section 33 (2) (a) is incorrect and, therefore, the tribunal was not right in entertaining the application under S.33-A and ordering reinstatement of the respondent.It is clear from a bare perusal of S.33 (2) that the proviso thereto only applies to cl. (b) and not to cl.(a) and the tribunal, therefore, was in error when it held that it also applied to cl. (a). But that in our opinion makes no difference in the present case as pointed out by the High Court. The contention of the respondent was that there had been a contravention of S. 33 (2) (b). It was that contention which gave jurisdiction to the tribunal and which the appellant had to meet and it did meet it by producing evidence. That evidence was considered by the tribunal and it found that the appellants contention that the respondent was guilty of dereliction of duty and go-slow had not been made out. In these circumstances even though the tribunal was in error in holding that the proviso to S. 33 (2) applied to cl. (a)thereof also there is no reason for us to interfere with the order passed by the tribunal. As the High Court has rightly pointed out, the case is clearly covered by S. 33 (2) (b) to which the proviso undoubtedly applies. As the proviso was not complied with, the application under S. 33-A could be entertained by the tribunal and the tribunal did entertain it and went into the merits of the charge and came to the conclusion that the charge had not been proved. In these circumstances the order passed by the tribunal, and upheld by the High Court, is substantially correct, in spite of the error of law committed by the tribunal.The form, therefore, used in the present case for terminating respondents services under cl.17 (a) is not conclusive and the tribunal was justified in enquiring into the reasons which led to such termination; even the Standing Orders provide that an employee can ask for reasons in such a case. Those reasons were given before the tribunal by the appellant, viz., the respondents services were terminated because he deliberately adoptedand was negligent in the discharge of his duty. His services were, therefore terminated for dereliction of duty andin his work. This clearly amounted to punishment for misconduct and, therefore, to pass an order under cl. 17(a) of the Standing Orders in such circumstances was clearly a colourable exercise of the power to terminate the services of a workman under the provision of the Standing Orders. In those circumstances the tribunal would be justified in going behind the order and deciding for itself whether the termination of the respondents services could be sustained. In the present case, evidence was led before the tribunal in support of the appellants case that the respondent was guilty of dereliction of duty andit his work. The tribunal has found that this has not been proved. In these circumstances the case was clearly covered by cl. (b) of S. 33 (2) of the Act as the services of the respondent were dispensed with during the pendency of a dispute by meting out the punishment of discharge to him for misconduct. As this was done without complying with the proviso, the termination of the service was rightly set aside. | 1 | 2,213 | 723 | ### Instruction:
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therefore, held that the industrial tribunal had jurisdiction to entertain the application under S. 33-A in the circumstances. Finally he held that as the tribunal had held on the merits that the charge against the respondent of dereliction of duty was not made out, the writ petition must fail. The appellant then went in appeal to the Division Bench, which upheld the order of the learned Single Judge. Then there was an application for leave to appeal to this Court, which was rejected. The appellant then applied for and obtained special leave from this Court and that is how the matter has come up before us. 5. The right of the employer to terminate the services of his workman under a standing order, like cl.17(a) in the present case, which amounts to a claim "to hire and fire" an employee as the employer pleases and thus completely negatives security of service which has been secured to industrial employees through industrial adjudication, came up for consideration before the Labour Appellate Tribunal in Buckingham and Carnatic Co. Ltd. v. Workers of the Company, 1952 Lab AC 490. The matter then came up before this Court also in the Chartered Bank v. Chartered Bank Employees Union, (1960) 3 SCR 441 : (AIR 1960 SC 919 ) and The Management of U. B. Dutt and Co. v. Workmen of U. B..Dutt and Co., 1962 Supp (2) SCR 822: (AIR 1963 SC 411 ), wherein the view taken by the Labour Appellate Tribunal was approved and it was held that even in a case like the present the requirement of bona fides was essential and if the termination of service was a colourable exercise of the power or as a result of victimisation or unfair labour practice the industrial tribunal would have the jurisdiction to intervene and set aside such termination. The form of the order in such a case is not conclusive and the tribunal can go behind the order to find the reasons which led to the order and then consider for itself whether the termination was a colourable exercise of the power or was a result of victimisation or unfair labour practice. If it came to the conclusion that the termination was a colourable exercise of the power or was a result of victimisation or unfair labour practice it would have the jurisdiction to intervene and set aside such termination.6. The form, therefore, used in the present case for terminating respondents services under cl.17 (a) is not conclusive and the tribunal was justified in enquiring into the reasons which led to such termination; even the Standing Orders provide that an employee can ask for reasons in such a case. Those reasons were given before the tribunal by the appellant, viz., the respondents services were terminated because he deliberately adopted go-slow and was negligent in the discharge of his duty. His services were, therefore terminated for dereliction of duty and so-slow in his work. This clearly amounted to punishment for misconduct and, therefore, to pass an order under cl. 17(a) of the Standing Orders in such circumstances was clearly a colourable exercise of the power to terminate the services of a workman under the provision of the Standing Orders. In those circumstances the tribunal would be justified in going behind the order and deciding for itself whether the termination of the respondents services could be sustained. In the present case, evidence was led before the tribunal in support of the appellants case that the respondent was guilty of dereliction of duty and go-slow it his work. The tribunal has found that this has not been proved. In these circumstances the case was clearly covered by cl. (b) of S. 33 (2) of the Act as the services of the respondent were dispensed with during the pendency of a dispute by meting out the punishment of discharge to him for misconduct. As this was done without complying with the proviso, the termination of the service was rightly set aside.7. It is, however, urged on behalf of the appellant that the tribunal found that the case under S. 33 (2) (b) had not been made out. It also found that the case which had been made out was one under S. 33 (2) (a). It then went onto hold that the proviso applied to S. 33 (2) (a). The appellant contends that the view of ale tribunal that the proviso applied to Section 33 (2) (a) is incorrect and, therefore, the tribunal was not right in entertaining the application under S.33-A and ordering reinstatement of the respondent. It is clear from a bare perusal of S.33 (2) that the proviso thereto only applies to cl. (b) and not to cl.(a) and the tribunal, therefore, was in error when it held that it also applied to cl. (a). But that in our opinion makes no difference in the present case as pointed out by the High Court. The contention of the respondent was that there had been a contravention of S. 33 (2) (b). It was that contention which gave jurisdiction to the tribunal and which the appellant had to meet and it did meet it by producing evidence. That evidence was considered by the tribunal and it found that the appellants contention that the respondent was guilty of dereliction of duty and go-slow had not been made out. In these circumstances even though the tribunal was in error in holding that the proviso to S. 33 (2) applied to cl. (a)thereof also there is no reason for us to interfere with the order passed by the tribunal. As the High Court has rightly pointed out, the case is clearly covered by S. 33 (2) (b) to which the proviso undoubtedly applies. As the proviso was not complied with, the application under S. 33-A could be entertained by the tribunal and the tribunal did entertain it and went into the merits of the charge and came to the conclusion that the charge had not been proved.
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7. It is, however, urged on behalf of the appellant that the tribunal found that the case under S. 33 (2) (b) had not been made out. It also found that the case which had been made out was one under S. 33 (2) (a). It then went onto hold that the proviso applied to S. 33 (2) (a). The appellant contends that the view of ale tribunal that the proviso applied to Section 33 (2) (a) is incorrect and, therefore, the tribunal was not right in entertaining the application under S.33-A and ordering reinstatement of the respondent.It is clear from a bare perusal of S.33 (2) that the proviso thereto only applies to cl. (b) and not to cl.(a) and the tribunal, therefore, was in error when it held that it also applied to cl. (a). But that in our opinion makes no difference in the present case as pointed out by the High Court. The contention of the respondent was that there had been a contravention of S. 33 (2) (b). It was that contention which gave jurisdiction to the tribunal and which the appellant had to meet and it did meet it by producing evidence. That evidence was considered by the tribunal and it found that the appellants contention that the respondent was guilty of dereliction of duty and go-slow had not been made out. In these circumstances even though the tribunal was in error in holding that the proviso to S. 33 (2) applied to cl. (a)thereof also there is no reason for us to interfere with the order passed by the tribunal. As the High Court has rightly pointed out, the case is clearly covered by S. 33 (2) (b) to which the proviso undoubtedly applies. As the proviso was not complied with, the application under S. 33-A could be entertained by the tribunal and the tribunal did entertain it and went into the merits of the charge and came to the conclusion that the charge had not been proved. In these circumstances the order passed by the tribunal, and upheld by the High Court, is substantially correct, in spite of the error of law committed by the tribunal.The form, therefore, used in the present case for terminating respondents services under cl.17 (a) is not conclusive and the tribunal was justified in enquiring into the reasons which led to such termination; even the Standing Orders provide that an employee can ask for reasons in such a case. Those reasons were given before the tribunal by the appellant, viz., the respondents services were terminated because he deliberately adoptedand was negligent in the discharge of his duty. His services were, therefore terminated for dereliction of duty andin his work. This clearly amounted to punishment for misconduct and, therefore, to pass an order under cl. 17(a) of the Standing Orders in such circumstances was clearly a colourable exercise of the power to terminate the services of a workman under the provision of the Standing Orders. In those circumstances the tribunal would be justified in going behind the order and deciding for itself whether the termination of the respondents services could be sustained. In the present case, evidence was led before the tribunal in support of the appellants case that the respondent was guilty of dereliction of duty andit his work. The tribunal has found that this has not been proved. In these circumstances the case was clearly covered by cl. (b) of S. 33 (2) of the Act as the services of the respondent were dispensed with during the pendency of a dispute by meting out the punishment of discharge to him for misconduct. As this was done without complying with the proviso, the termination of the service was rightly set aside.
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KEWAL KRISHAN Vs. RAJESH KUMAR & ORS. ETC | District Court that there was no evidence adduced to show that Sudarshan Kumars wife and minor children paid consideration as shown in the sale deeds. In fact, before the District Court, it was pleaded that Sudarshan Kumars wife had brought some money from her parents. The District Court in paragraph 11 of the judgment held that no evidence was adduced to prove the said contention. Therefore, there is a categorical finding recorded in the same paragraph by the District Court that Sudarshan Kumar, by taking advantage of the power of attorney, transferred the suit lands to his own minor sons and his wife without any consideration. The High Court has not disturbed the finding recorded by the District Court regarding the failure of the respondents to adduce evidence regarding the payment of consideration under the sale deeds dated 10th April 1981. The High Court in paragraph 29 merely observed that the sale consideration of Rs.5,500/- and Rs.6,875/- was not exorbitant and was not out of reach of Sudarshan Kumars sons and wife. Perhaps, the High Court has ignored that it was considering a case of sale deeds of the year 1981 and that the purchasers under one of two sale deeds were minor sons of Sudarshan Kumar and it was not even pleaded that they had any source of income. The same is the case with the sale deed executed by Sudarshan Kumar in favour of his wife. Thus, undisputed factual position is that the respondents failed to adduce any evidence to prove that the minor sons had any source of income and that they had paid the consideration payable under the sale deed. They did not adduce any evidence to show that Sudarshan Kumars wife was earning anything and that she had actually paid the consideration as mentioned in the sale deed. 15. Section 54 of the Transfer of Property Act, 1882 (for short the TP Act) reads thus: 54. Sale defined.— Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made.—Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale.—A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. Hence, a sale of an immovable property has to be for a price. The price may be payable in future. It may be partly paid and the remaining part can be made payable in future. The payment of price is an essential part of a sale covered by section 54 of the TP Act. If a sale deed in respect of an immovable property is executed without payment of price and if it does not provide for the payment of price at a future date, it is not a sale at all in the eyes of law. It is of no legal effect. Therefore, such a sale will be void. It will not effect the transfer of the immovable property. 16. Now, coming back to the case in hand, both the sale deeds record that the consideration has been paid. That is the specific case of the respondents. It is the specific case made out in the plaints as originally filed that the sale deeds are void as the same are without consideration. It is pleaded that the same are sham as the purchasers who were minor sons and wife of Sudarshan Kumar had no earning capacity. No evidence was adduced by Sudarshan Kumar about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time of his wife and minor sons. Hence, the sale deeds will have to be held as void being executed without consideration. Hence, the sale deeds did not affect in any manner one half share of the appellant in the suit properties. In fact, such a transaction made by Sudarshan Kumar of selling the suit properties on the basis of the power of attorney of the appellant to his own wife and minor sons is a sham transaction. Thus, the sale deeds of 10th April 1981 will not confer any right, title and interest on Sudarshan Kumars wife and children as the sale deeds will have to be ignored being void. It was not necessary for the appellant to specifically claim a declaration as regards the sale deeds by way of amendment to the plaint. The reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void. A document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings. Hence, the issue of bar of limitation of the prayers for declaration incorporated by way of an amendment does not arise at all. The additional submissions made by the respondents on 16th November 2021 have no relevance at all. 17. As no title was transferred under the said sale deeds, the appellant continues to have undivided half share in the suit properties. That is how the District Court passed the decree holding that the appellant is entitled to joint possession of the suit properties along with Sudarshan Kumar. Therefore, for the reasons recorded above, by setting aside the impugned Judgment and order of the High Court, the decree passed by the District Court deserves to be restored. | 1[ds]12. We have given our careful consideration to the submissions. The case made out by the respondents in their written statement was that Sudarshan Kumar, who was employed abroad, remitted large amounts to the appellant, his younger brother, who was unemployed at that time. The case of the respondents was that Sudarshan Kumar paid the entire consideration for acquiring the suit properties under the sale deeds of 1976. The contention of the respondents is that instead of purchasing suit properties only in the name of Sudarshan Kumar, the appellant incorporated his name in the sale deeds along with Sudarshan Kumar. It is an admitted position that the said Sudarshan Kumar did not step into the witness box. Moreover, there is a finding recorded by the District Court that no evidence was adduced by Sudarshan Kumar to prove that certain amounts were transmitted by him from a foreign country to the appellant. This finding has not been disturbed by the High Court. The modified decree passed by the High Court by the impugned Judgment and order proceeds on the basis of the finding that the appellant and Sudarshan Kumar were the joint owners of the suit properties as Sudarshan Kumar failed to establish his claim that he was the sole owner of the suit properties. The respondents have not chosen to challenge the impugned Judgment and order and therefore, the finding that the appellant and Sudarshan Kumar were the joint owners of the suit properties has become final. Hence, reliance placed by the respondents on the letter at Exhibit D3 will not help them.14. Admittedly, there is no evidence adduced on record by Sudarshan Kumar that his minor sons had any source of income at the relevant time and that they paid him consideration as mentioned in the sale deed. Similarly, no evidence was adduced to show that Sudarshan Kumars wife had any source of income and that she paid consideration mentioned in the sale deed. An issue was specifically framed by the Trial Court on the validity of the sale deeds. There is a specific finding recorded by the District Court that there was no evidence adduced to show that Sudarshan Kumars wife and minor children paid consideration as shown in the sale deeds. In fact, before the District Court, it was pleaded that Sudarshan Kumars wife had brought some money from her parents. The District Court in paragraph 11 of the judgment held that no evidence was adduced to prove the said contention. Therefore, there is a categorical finding recorded in the same paragraph by the District Court that Sudarshan Kumar, by taking advantage of the power of attorney, transferred the suit lands to his own minor sons and his wife without any consideration. The High Court has not disturbed the finding recorded by the District Court regarding the failure of the respondents to adduce evidence regarding the payment of consideration under the sale deeds dated 10th April 1981. The High Court in paragraph 29 merely observed that the sale consideration of Rs.5,500/- and Rs.6,875/- was not exorbitant and was not out of reach of Sudarshan Kumars sons and wife. Perhaps, the High Court has ignored that it was considering a case of sale deeds of the year 1981 and that the purchasers under one of two sale deeds were minor sons of Sudarshan Kumar and it was not even pleaded that they had any source of income. The same is the case with the sale deed executed by Sudarshan Kumar in favour of his wife. Thus, undisputed factual position is that the respondents failed to adduce any evidence to prove that the minor sons had any source of income and that they had paid the consideration payable under the sale deed. They did not adduce any evidence to show that Sudarshan Kumars wife was earning anything and that she had actually paid the consideration as mentioned in the sale deed.16. Now, coming back to the case in hand, both the sale deeds record that the consideration has been paid. That is the specific case of the respondents. It is the specific case made out in the plaints as originally filed that the sale deeds are void as the same are without consideration. It is pleaded that the same are sham as the purchasers who were minor sons and wife of Sudarshan Kumar had no earning capacity. No evidence was adduced by Sudarshan Kumar about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time of his wife and minor sons. Hence, the sale deeds will have to be held as void being executed without consideration. Hence, the sale deeds did not affect in any manner one half share of the appellant in the suit properties. In fact, such a transaction made by Sudarshan Kumar of selling the suit properties on the basis of the power of attorney of the appellant to his own wife and minor sons is a sham transaction. Thus, the sale deeds of 10th April 1981 will not confer any right, title and interest on Sudarshan Kumars wife and children as the sale deeds will have to be ignored being void. It was not necessary for the appellant to specifically claim a declaration as regards the sale deeds by way of amendment to the plaint. The reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void. A document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings.Hence, the issue of bar of limitation of the prayers for declaration incorporated by way of an amendment does not arise at all. The additional submissions made by the respondents on 16th November 2021 have no relevance at all.17. As no title was transferred under the said sale deeds, the appellant continues to have undivided half share in the suit properties. That is how the District Court passed the decree holding that the appellant is entitled to joint possession of the suit properties along with Sudarshan Kumar. Therefore, for the reasons recorded above, by setting aside the impugned Judgment and order of the High Court, the decree passed by the District Court deserves to be restored. | 1 | 3,683 | 1,125 | ### 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:
District Court that there was no evidence adduced to show that Sudarshan Kumars wife and minor children paid consideration as shown in the sale deeds. In fact, before the District Court, it was pleaded that Sudarshan Kumars wife had brought some money from her parents. The District Court in paragraph 11 of the judgment held that no evidence was adduced to prove the said contention. Therefore, there is a categorical finding recorded in the same paragraph by the District Court that Sudarshan Kumar, by taking advantage of the power of attorney, transferred the suit lands to his own minor sons and his wife without any consideration. The High Court has not disturbed the finding recorded by the District Court regarding the failure of the respondents to adduce evidence regarding the payment of consideration under the sale deeds dated 10th April 1981. The High Court in paragraph 29 merely observed that the sale consideration of Rs.5,500/- and Rs.6,875/- was not exorbitant and was not out of reach of Sudarshan Kumars sons and wife. Perhaps, the High Court has ignored that it was considering a case of sale deeds of the year 1981 and that the purchasers under one of two sale deeds were minor sons of Sudarshan Kumar and it was not even pleaded that they had any source of income. The same is the case with the sale deed executed by Sudarshan Kumar in favour of his wife. Thus, undisputed factual position is that the respondents failed to adduce any evidence to prove that the minor sons had any source of income and that they had paid the consideration payable under the sale deed. They did not adduce any evidence to show that Sudarshan Kumars wife was earning anything and that she had actually paid the consideration as mentioned in the sale deed. 15. Section 54 of the Transfer of Property Act, 1882 (for short the TP Act) reads thus: 54. Sale defined.— Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made.—Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale.—A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. Hence, a sale of an immovable property has to be for a price. The price may be payable in future. It may be partly paid and the remaining part can be made payable in future. The payment of price is an essential part of a sale covered by section 54 of the TP Act. If a sale deed in respect of an immovable property is executed without payment of price and if it does not provide for the payment of price at a future date, it is not a sale at all in the eyes of law. It is of no legal effect. Therefore, such a sale will be void. It will not effect the transfer of the immovable property. 16. Now, coming back to the case in hand, both the sale deeds record that the consideration has been paid. That is the specific case of the respondents. It is the specific case made out in the plaints as originally filed that the sale deeds are void as the same are without consideration. It is pleaded that the same are sham as the purchasers who were minor sons and wife of Sudarshan Kumar had no earning capacity. No evidence was adduced by Sudarshan Kumar about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time of his wife and minor sons. Hence, the sale deeds will have to be held as void being executed without consideration. Hence, the sale deeds did not affect in any manner one half share of the appellant in the suit properties. In fact, such a transaction made by Sudarshan Kumar of selling the suit properties on the basis of the power of attorney of the appellant to his own wife and minor sons is a sham transaction. Thus, the sale deeds of 10th April 1981 will not confer any right, title and interest on Sudarshan Kumars wife and children as the sale deeds will have to be ignored being void. It was not necessary for the appellant to specifically claim a declaration as regards the sale deeds by way of amendment to the plaint. The reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void. A document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings. Hence, the issue of bar of limitation of the prayers for declaration incorporated by way of an amendment does not arise at all. The additional submissions made by the respondents on 16th November 2021 have no relevance at all. 17. As no title was transferred under the said sale deeds, the appellant continues to have undivided half share in the suit properties. That is how the District Court passed the decree holding that the appellant is entitled to joint possession of the suit properties along with Sudarshan Kumar. Therefore, for the reasons recorded above, by setting aside the impugned Judgment and order of the High Court, the decree passed by the District Court deserves to be restored.
### Response:
1
### Explanation:
Kumar paid the entire consideration for acquiring the suit properties under the sale deeds of 1976. The contention of the respondents is that instead of purchasing suit properties only in the name of Sudarshan Kumar, the appellant incorporated his name in the sale deeds along with Sudarshan Kumar. It is an admitted position that the said Sudarshan Kumar did not step into the witness box. Moreover, there is a finding recorded by the District Court that no evidence was adduced by Sudarshan Kumar to prove that certain amounts were transmitted by him from a foreign country to the appellant. This finding has not been disturbed by the High Court. The modified decree passed by the High Court by the impugned Judgment and order proceeds on the basis of the finding that the appellant and Sudarshan Kumar were the joint owners of the suit properties as Sudarshan Kumar failed to establish his claim that he was the sole owner of the suit properties. The respondents have not chosen to challenge the impugned Judgment and order and therefore, the finding that the appellant and Sudarshan Kumar were the joint owners of the suit properties has become final. Hence, reliance placed by the respondents on the letter at Exhibit D3 will not help them.14. Admittedly, there is no evidence adduced on record by Sudarshan Kumar that his minor sons had any source of income at the relevant time and that they paid him consideration as mentioned in the sale deed. Similarly, no evidence was adduced to show that Sudarshan Kumars wife had any source of income and that she paid consideration mentioned in the sale deed. An issue was specifically framed by the Trial Court on the validity of the sale deeds. There is a specific finding recorded by the District Court that there was no evidence adduced to show that Sudarshan Kumars wife and minor children paid consideration as shown in the sale deeds. In fact, before the District Court, it was pleaded that Sudarshan Kumars wife had brought some money from her parents. The District Court in paragraph 11 of the judgment held that no evidence was adduced to prove the said contention. Therefore, there is a categorical finding recorded in the same paragraph by the District Court that Sudarshan Kumar, by taking advantage of the power of attorney, transferred the suit lands to his own minor sons and his wife without any consideration. The High Court has not disturbed the finding recorded by the District Court regarding the failure of the respondents to adduce evidence regarding the payment of consideration under the sale deeds dated 10th April 1981. The High Court in paragraph 29 merely observed that the sale consideration of Rs.5,500/- and Rs.6,875/- was not exorbitant and was not out of reach of Sudarshan Kumars sons and wife. Perhaps, the High Court has ignored that it was considering a case of sale deeds of the year 1981 and that the purchasers under one of two sale deeds were minor sons of Sudarshan Kumar and it was not even pleaded that they had any source of income. The same is the case with the sale deed executed by Sudarshan Kumar in favour of his wife. Thus, undisputed factual position is that the respondents failed to adduce any evidence to prove that the minor sons had any source of income and that they had paid the consideration payable under the sale deed. They did not adduce any evidence to show that Sudarshan Kumars wife was earning anything and that she had actually paid the consideration as mentioned in the sale deed.16. Now, coming back to the case in hand, both the sale deeds record that the consideration has been paid. That is the specific case of the respondents. It is the specific case made out in the plaints as originally filed that the sale deeds are void as the same are without consideration. It is pleaded that the same are sham as the purchasers who were minor sons and wife of Sudarshan Kumar had no earning capacity. No evidence was adduced by Sudarshan Kumar about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time of his wife and minor sons. Hence, the sale deeds will have to be held as void being executed without consideration. Hence, the sale deeds did not affect in any manner one half share of the appellant in the suit properties. In fact, such a transaction made by Sudarshan Kumar of selling the suit properties on the basis of the power of attorney of the appellant to his own wife and minor sons is a sham transaction. Thus, the sale deeds of 10th April 1981 will not confer any right, title and interest on Sudarshan Kumars wife and children as the sale deeds will have to be ignored being void. It was not necessary for the appellant to specifically claim a declaration as regards the sale deeds by way of amendment to the plaint. The reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void. A document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings.Hence, the issue of bar of limitation of the prayers for declaration incorporated by way of an amendment does not arise at all. The additional submissions made by the respondents on 16th November 2021 have no relevance at all.17. As no title was transferred under the said sale deeds, the appellant continues to have undivided half share in the suit properties. That is how the District Court passed the decree holding that the appellant is entitled to joint possession of the suit properties along with Sudarshan Kumar. Therefore, for the reasons recorded above, by setting aside the impugned Judgment and order of the High Court, the decree passed by the District Court deserves to be restored.
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Ajab and Others Vs. State of Maharashtra | AHMADI, J. 1. In Sessions Case 13 of 1974, 23 persons were arraigned before the learned Additional Sessions Judge, Yavatmal for the commission of offences punishable under Section 147, 201, 216, 332 and 295, IPC. The learned judge convicted accused 2 and 17 to 21 under the aforesaid provisions and sentenced them to varying terms of imprisonment on each counts. All of them preferred an appeal to the High Court. Masodkar, U, who heard the appeal found that no error was committed by the trial court and dismissed the appeal. Against the said order, original accused 17 to 21 have approached this Court by special leave2. The facts giving rise to this appeal, briefly stated, are these : The incident in question occurred on December 26, 1972 between 2 p. m. and 5 p. m. in village Dahegaon. On that day, PW 1 head Constable Bansi received information that certain persons were gaming by placing bets at a cock fight. Thereupon, PW 1 raided the place in the company of police constables PWs 2, 4, 5, 12 and others and two panchas, PW 6 Narayan and PW 9 Prahlad. Twelve persons were arrested for gambling and a seizure panchnama was prepared Besides arresting the twelve persons who were found gambling, two dead cocks, ten live cocks, 12 katyams and Rs. 50 were seized under the seizure memo. Other members of the crowd who had succeeded in fleeing on the arrival of the police party regrouped themselves and started pelting stones as the police party was escorting the apprehended persons. In the confusion that followed by attack, the twelve apprehended persons broke loose and ran away along with the cocks. One of them even removed the seizure memo and the currency not from the pocket of the police constable who was in possession thereof They too joined the crowd which was pelting stones. The police party, therefore, ran away and some of them reached the police station Wadki and informed PW 3 Head Constable Kishan, (SHO) about the incident An entry was posted in the station diary about the incident but no offence was registered till PSI Gulamali returned on December 28, 1972. After registering the offence he went to Dahegaon on the 30th, drew up the panchnama, recorded statements of eye-witnesses and arrested the accused including the twelve persons who are apprehended earlier and had escaped3. The injured policemen were sent for treatment. They were examined by PW 7 Dr. Khadse. On examination of PWs 1, 4, 5, and 12 on the evening of December 26, 1972 it was noticed that they had certain trivial injuries which were possible by stones. PW 7 also examined some of the accused on December 31, 1972 but none of them had may visible injury. PW 8 Dr. Shankar Rao examined accused 17 on January 1, 1973 and noticed a healed scare 3/4" x 1/2 which was of little significance. In addition to this medical evidence the prosecution relied on the ocular evidence of PWs 1, 2, 4, 5, 6, and 12 to prove the actual occurrence. The learned counsel for the applicants contended that the prosecution version as regards the actual occurrence was highly suspect, more so because of the delay in lodging of FIR. We were taken through the evidence of the material witnesses." On a perusal of their evidence we are not inclined to think that the courts below and committed any error in the appreciation of their evidence We, therefore, do not think that this is a fit case for reappraisal of the evidence in exercise of jurisdiction under Article 136 of the Constitution 4. It was next contended that in any case the entire blame for the incident could not lie at the doors of the appellants According to the learned counsel, the statement of accused 18 disclosed that a few days before the incident PW 1 had visited the house of Bapurao Kisan, since deceased, and had demanded money. In reply, Bapurao Kisan paid the installment of Rs. 40 stating that he had already paid Rs. 16 to another Head Constable a day earlier Since Bapurao Kisan was not amenable to meet the demand, the raid in question was carried out As the police party interfered with their enjoyment, the spectators got annoyed and pelted stones at the police party. He, therefore, submitted that this was not a planned attack by the appellants but a mere sporadic event for which too serious a view was not called for. He lastly contended that in any event the conviction of the appellants under Section 216, IPC was unsustainable 5. Taking the last point first, we see merit in the contention that the conviction under Section 216 is wrong. Under that section person who harbours or conceals an offender who has escaped from custody or whose apprehension is ordered is liable for punishment if he has done so to prevent the offenders apprehension. In the present case, although the 12 persons who were apprehended for gaming had escaped, there was no evidence to show that any of the appellants was guilty of harbouring any of them. We are, therefore of the opinion that their conviction under section 216 IPC is not proper. The correct section to apply would be Section 224, IPC, which inter alia provides for punishment if a person escapes or attempts to escape from any custody in which he is lawfully detained. We are, therefore, of the opinion that the conviction under Section 216 IPC, is not proper and it ought to be under Section 224 IPC6. We agree with the learned counsel for the appellants that the case does not call for a severe punishment. The background in which the incident occurred, the minor injuries caused to some of the policemen and the circumstances in which the crowd pelted stones at the police party betray frustration for not being able to enjoy the cock fight rather than any real desire to attack the police party. 7. | 1[ds]5. Taking the last point first, we see merit in the contention that the conviction under Section 216 is wrong. Under that section person who harbours or conceals an offender who has escaped from custody or whose apprehension is ordered is liable for punishment if he has done so to prevent the offenders apprehension. In the present case, although the 12 persons who were apprehended for gaming had escaped, there was no evidence to show that any of the appellants was guilty of harbouring any of them. We are, therefore of the opinion that their conviction under section 216 IPC is not proper. The correct section to apply would be Section 224, IPC, which inter alia provides for punishment if a person escapes or attempts to escape from any custody in which he is lawfully detained. We are, therefore, of the opinion that the conviction under Section 216 IPC, is not proper and it ought to be under Section 224 IPC6. We agree with the learned counsel for the appellants that the case does not call for a severe punishment. The background in which the incident occurred, the minor injuries caused to some of the policemen and the circumstances in which the crowd pelted stones at the police party betray frustration for not being able to enjoy the cock fight rather than any real desire to attack the police party. | 1 | 1,106 | 253 | ### 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:
AHMADI, J. 1. In Sessions Case 13 of 1974, 23 persons were arraigned before the learned Additional Sessions Judge, Yavatmal for the commission of offences punishable under Section 147, 201, 216, 332 and 295, IPC. The learned judge convicted accused 2 and 17 to 21 under the aforesaid provisions and sentenced them to varying terms of imprisonment on each counts. All of them preferred an appeal to the High Court. Masodkar, U, who heard the appeal found that no error was committed by the trial court and dismissed the appeal. Against the said order, original accused 17 to 21 have approached this Court by special leave2. The facts giving rise to this appeal, briefly stated, are these : The incident in question occurred on December 26, 1972 between 2 p. m. and 5 p. m. in village Dahegaon. On that day, PW 1 head Constable Bansi received information that certain persons were gaming by placing bets at a cock fight. Thereupon, PW 1 raided the place in the company of police constables PWs 2, 4, 5, 12 and others and two panchas, PW 6 Narayan and PW 9 Prahlad. Twelve persons were arrested for gambling and a seizure panchnama was prepared Besides arresting the twelve persons who were found gambling, two dead cocks, ten live cocks, 12 katyams and Rs. 50 were seized under the seizure memo. Other members of the crowd who had succeeded in fleeing on the arrival of the police party regrouped themselves and started pelting stones as the police party was escorting the apprehended persons. In the confusion that followed by attack, the twelve apprehended persons broke loose and ran away along with the cocks. One of them even removed the seizure memo and the currency not from the pocket of the police constable who was in possession thereof They too joined the crowd which was pelting stones. The police party, therefore, ran away and some of them reached the police station Wadki and informed PW 3 Head Constable Kishan, (SHO) about the incident An entry was posted in the station diary about the incident but no offence was registered till PSI Gulamali returned on December 28, 1972. After registering the offence he went to Dahegaon on the 30th, drew up the panchnama, recorded statements of eye-witnesses and arrested the accused including the twelve persons who are apprehended earlier and had escaped3. The injured policemen were sent for treatment. They were examined by PW 7 Dr. Khadse. On examination of PWs 1, 4, 5, and 12 on the evening of December 26, 1972 it was noticed that they had certain trivial injuries which were possible by stones. PW 7 also examined some of the accused on December 31, 1972 but none of them had may visible injury. PW 8 Dr. Shankar Rao examined accused 17 on January 1, 1973 and noticed a healed scare 3/4" x 1/2 which was of little significance. In addition to this medical evidence the prosecution relied on the ocular evidence of PWs 1, 2, 4, 5, 6, and 12 to prove the actual occurrence. The learned counsel for the applicants contended that the prosecution version as regards the actual occurrence was highly suspect, more so because of the delay in lodging of FIR. We were taken through the evidence of the material witnesses." On a perusal of their evidence we are not inclined to think that the courts below and committed any error in the appreciation of their evidence We, therefore, do not think that this is a fit case for reappraisal of the evidence in exercise of jurisdiction under Article 136 of the Constitution 4. It was next contended that in any case the entire blame for the incident could not lie at the doors of the appellants According to the learned counsel, the statement of accused 18 disclosed that a few days before the incident PW 1 had visited the house of Bapurao Kisan, since deceased, and had demanded money. In reply, Bapurao Kisan paid the installment of Rs. 40 stating that he had already paid Rs. 16 to another Head Constable a day earlier Since Bapurao Kisan was not amenable to meet the demand, the raid in question was carried out As the police party interfered with their enjoyment, the spectators got annoyed and pelted stones at the police party. He, therefore, submitted that this was not a planned attack by the appellants but a mere sporadic event for which too serious a view was not called for. He lastly contended that in any event the conviction of the appellants under Section 216, IPC was unsustainable 5. Taking the last point first, we see merit in the contention that the conviction under Section 216 is wrong. Under that section person who harbours or conceals an offender who has escaped from custody or whose apprehension is ordered is liable for punishment if he has done so to prevent the offenders apprehension. In the present case, although the 12 persons who were apprehended for gaming had escaped, there was no evidence to show that any of the appellants was guilty of harbouring any of them. We are, therefore of the opinion that their conviction under section 216 IPC is not proper. The correct section to apply would be Section 224, IPC, which inter alia provides for punishment if a person escapes or attempts to escape from any custody in which he is lawfully detained. We are, therefore, of the opinion that the conviction under Section 216 IPC, is not proper and it ought to be under Section 224 IPC6. We agree with the learned counsel for the appellants that the case does not call for a severe punishment. The background in which the incident occurred, the minor injuries caused to some of the policemen and the circumstances in which the crowd pelted stones at the police party betray frustration for not being able to enjoy the cock fight rather than any real desire to attack the police party. 7.
### Response:
1
### Explanation:
5. Taking the last point first, we see merit in the contention that the conviction under Section 216 is wrong. Under that section person who harbours or conceals an offender who has escaped from custody or whose apprehension is ordered is liable for punishment if he has done so to prevent the offenders apprehension. In the present case, although the 12 persons who were apprehended for gaming had escaped, there was no evidence to show that any of the appellants was guilty of harbouring any of them. We are, therefore of the opinion that their conviction under section 216 IPC is not proper. The correct section to apply would be Section 224, IPC, which inter alia provides for punishment if a person escapes or attempts to escape from any custody in which he is lawfully detained. We are, therefore, of the opinion that the conviction under Section 216 IPC, is not proper and it ought to be under Section 224 IPC6. We agree with the learned counsel for the appellants that the case does not call for a severe punishment. The background in which the incident occurred, the minor injuries caused to some of the policemen and the circumstances in which the crowd pelted stones at the police party betray frustration for not being able to enjoy the cock fight rather than any real desire to attack the police party.
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E. M. Muthappa Chettiar Vs. The Income-Tax Officer, Specialcircle, Coimbatore | expenditure. The sum of Rs. One lakh odd was due by them to the firm and in fact had claimed to deduct that entire sum as part of their business expenditure. The sum of Rs. one lakh odd was therefore held to have accrued to the firm as its income and that this remained unaffected by the existence of the cross claim. The contention which was repelled by the Income-tax Officer was addressed to us as a ground for disputing the inclusion of the Rs. 89 thousand odd as the income of the firm in its Excess Profits Tax assessment. We see no substance in the point urged. Learned Counsel referred us to the decision of this Court in Commr. of Income-tax, Madras v. K. R. M. T. T. Thiagaraja Chetty and Co. 1954 SCR 258 : (AIR 1953 SC 527 ) and to the observations at p. 261 (of SCR) : (at p. 528 of AIR). We consider that the decision far from supporting the appellant is really against him. 11. There are therefore no legal grounds for impugning the validity of the order of assessment to Excess Profits Tax dated March 15, 1951, and we consider that the same is binding on the business and on the owner of that business including the appellant. As a result Writ Petition 130 of 1958 fails and has to be dismissed. 12. The point that next calls for consideration is the subject matter of Civil Appeal 107 of 1956 and this is whether the Excess Profits Tax assessed could be validly recovered from the appellant by resort to the machinery for collection provided by S. 46 of the Income-tax Act. 13. The argument of learned Counsel for the appellant in regard to this point was on the following lines : 14. Sections 45 to 47 of the Income-tax Act, 1922, which provide for the recovery of Income-tax by coercive process, no doubt apply for the recovery of Excess Profits Tax by virtue of their inclusion in S. 21 of the Excess Profits Tax Act as provisions applicable to the latter Act, and by reason of the assessment on the firm of Muthappa and Co. the appellant became liable to pay the Excess Profits Tax assesseed. It was nevertheless urged that the coercive process for recovery of his tax liability under S. 46(2) of the Income-tax Act could not be invoked against the appellant, the submission being rested on two propositions : (1) That the appellant was not an "assessee" but only a "person liable to pay the tax" within S. 29 of the Income-tax Act - which runs:"When any (tax, penalty or interest) is due in consequence of any order passed under or in pursuance of this Act, the Income-tax Officer shall serve upon the assessee or other person liable to pay such (tax, penalty or interest) a notice of demand in the prescribed form specifying the sum so payable." It was further urged that as in the present case there had been no notice of demand under S. 29 of the Income-tax Act specifically addressed to and served on the appellant, he could not become an "assessee indefault", neither would the tax payable by him become "an arrear" as to permit the invocation of the coercive process under S. 46(2) for recovery. (2) That the procedure for recovery enacted in Ss. 45 to 47 including S. 46(2) were confined in their application to "assessees" and "assessees in default" and did not apply to the class of "other persons liable to pay the tax" as against whom the filing of a suit for the recovery of the tax and the execution of decrees in such suits was the only machinery through which the tax liability of this class could be enforced. For the purposes of this case we do not consider it necessary to deal with the larger second question as to whether the expression "assessee" and "assessee in default" in Ss. 45 and 46 of the Income-tax Act, 1922, should be held to be confined to "assessees" as distinguished from "other persons liable to pay such tax" as these expressions occur in S. 29 of the Act, or whether the expression "assessee" when it occurs in Ss. 45 to 47 should be understood as defined in S. 2(2) as including "every person by whom income-tax . . . is payable", since we are clearly of the opinion that the appellant was an "assessee". Section 21 of the Excess Profits Tax Act carries a proviso which reads :"Provided that references in the said provisions to the assessee shall be construed as reference to a person to whom business this Act applies." 15. In view of this provision the appellant as the partner of the "business" to which "this Act applies" would be "an assessee" - and not merely an "other person liable to pay the tax." He would also be an "assessee in default" and the amount due from him would be an arrear since the notice of demand under S. 29 of the Income-tax Act was served on the managing partner - Thyagrajan Chettiar and such service would be tantamount to a notice served on the appellant himself by reason of S. 63 of the Income-tax Act. Indeed the entire basis on which the assessment proceedings completed after notice to Thyagrajan Chettiar as the managing-partner of Muthappa and Co. have been held by us to be binding on the appellant would preclude any argument of the type advanced to challenge the binding character of the notices served. The appellant was clearly an "assessee in default" within S. 46(1) of the Income-tax Act and the amount of tax and penalty due from him would be "an arrear" within S. 46(2). 16. We therefore hold that the proceedings for the recovery of the Excess Profits Tax could properly be taken and that the order of the High Court dismissing the appellants petition for the issue of a writ of prohibition was correct. | 0[ds]1) That on the facts of the present case the appellant is precluded from pleading that the firm had been dissolved at the date of the assessment in 1951 and from raising any objection to the representative character of Thyagrajan Chettiar, (2) That on a proper construction of the provisions of the Excess Profits Tax Act, 1940, even if the firm of Muthappa and Co. should be held to have been dissolved before 1951 when the order of assessment was passed, the assessment of the managing agency business to Excess Profits Tax was properly and legally effected by notice to Thyagrajan ChettiarThe assertion by the appellant that the partnership was undissolved an continued its existence contained in his letter to the Income-tax Officer in February 1945, still held good and was backed up by the proceedings he took in the Civil Courts to maintain that stand. No doubt his claim had not been upheld by the Subordinate Judge, but by the appeal that he filed, he rendered the matter res sub judice and till the decision of the High Court in 1953 the appellant could not obviously suggest any particular date as the date of the dissolution. The submission of learned Counsel which proceeds on the assumption that there was a dissolution of the firm on March 4, 1943; or on March 10, 1949 - which was the date fixed by the High Court by its judgment of 1953, has to be rejected as wholly inconsistent with the contentions urged by the appellant in the Civil suit and the appeal therefrom. In the circumstances, the Income-tax Officer could not be blamed for treating the firm as in existence and similarly the Excess Profits Tax Officer also. It was common ground that at the date the Excess Profits Tax Officer started proceedings for assessment, the appellant had filed an appeal against the judgment of the Subordinate Judge in O. S. 50 of 1946 and the same was pending in the High Court and that it was only in 1953 that the appeal was disposed ofhe contention now urged before us was, that as the High Court had held that the firm should be treated as having been dissolved as and from March 10, 1949, the issue of any notice to Thyagrajan Chettiar as the managing partner of the firm was invalid and the assessment proceedings completed on that basis would also be illegal. If the contention of the appellant were to prevail it would mean that the validity or otherwise of the assessment order would be retrospectively determined by the result of the appellants appeal which was pending before the High Court so that if the High Court had held that the firm should be treated as dissolved only on the date of its judgment in 1953, the assessment would be valid but that if the High Court had fixed the date if dissolution on some date earlier than March 31, 1951, the assessment would be deemed invalid. This argument has only to be stated to be rejected. When this aspect of the matter was put to learned Counsel for the appellant, he fairly conceded that he could not on the facts of this case maintain to position that the order of assessment to Excess Profits Tax was vitiated because of the alleged disruption of the firm of Muthappa and Co. before the date of that order7. The other answer to the submission is that even assuming that the firm of Muthappa and Co. had been in fact dissolved on some date anterior to the assessment of the managing agency business to Excess Profits Tax, that would be affect the validity of an assessment order passed after notice to the person in management of the business during the chargeable accounting periods, since it was not the firm but "the business" that was the unit of assessment15. In view of this provision the appellant as the partner of the "business" to which "this Act applies" would be "an assessee" - and not merely an "other person liable to pay the tax." He would also be an "assessee in default" and the amount due from him would be an arrear since the notice of demand under S. 29 of the Income-tax Act was served on the managing partner - Thyagrajan Chettiar and such service would be tantamount to a notice served on the appellant himself by reason of S. 63 of the Income-tax Act. Indeed the entire basis on which the assessment proceedings completed after notice to Thyagrajan Chettiar as the managing-partner of Muthappa and Co. have been held by us to be binding on the appellant would preclude any argument of the type advanced to challenge the binding character of the notices served. The appellant was clearly an "assessee in default" within S. 46(1) of the Income-tax Act and the amount of tax and penalty due from him would be "an arrear" within S. 46(2)16. We therefore hold that the proceedings for the recovery of the Excess Profits Tax could properly be taken and that the order of the High Court dismissing the appellants petition for the issue of a writ of prohibition was correct. | 0 | 4,783 | 929 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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expenditure. The sum of Rs. One lakh odd was due by them to the firm and in fact had claimed to deduct that entire sum as part of their business expenditure. The sum of Rs. one lakh odd was therefore held to have accrued to the firm as its income and that this remained unaffected by the existence of the cross claim. The contention which was repelled by the Income-tax Officer was addressed to us as a ground for disputing the inclusion of the Rs. 89 thousand odd as the income of the firm in its Excess Profits Tax assessment. We see no substance in the point urged. Learned Counsel referred us to the decision of this Court in Commr. of Income-tax, Madras v. K. R. M. T. T. Thiagaraja Chetty and Co. 1954 SCR 258 : (AIR 1953 SC 527 ) and to the observations at p. 261 (of SCR) : (at p. 528 of AIR). We consider that the decision far from supporting the appellant is really against him. 11. There are therefore no legal grounds for impugning the validity of the order of assessment to Excess Profits Tax dated March 15, 1951, and we consider that the same is binding on the business and on the owner of that business including the appellant. As a result Writ Petition 130 of 1958 fails and has to be dismissed. 12. The point that next calls for consideration is the subject matter of Civil Appeal 107 of 1956 and this is whether the Excess Profits Tax assessed could be validly recovered from the appellant by resort to the machinery for collection provided by S. 46 of the Income-tax Act. 13. The argument of learned Counsel for the appellant in regard to this point was on the following lines : 14. Sections 45 to 47 of the Income-tax Act, 1922, which provide for the recovery of Income-tax by coercive process, no doubt apply for the recovery of Excess Profits Tax by virtue of their inclusion in S. 21 of the Excess Profits Tax Act as provisions applicable to the latter Act, and by reason of the assessment on the firm of Muthappa and Co. the appellant became liable to pay the Excess Profits Tax assesseed. It was nevertheless urged that the coercive process for recovery of his tax liability under S. 46(2) of the Income-tax Act could not be invoked against the appellant, the submission being rested on two propositions : (1) That the appellant was not an "assessee" but only a "person liable to pay the tax" within S. 29 of the Income-tax Act - which runs:"When any (tax, penalty or interest) is due in consequence of any order passed under or in pursuance of this Act, the Income-tax Officer shall serve upon the assessee or other person liable to pay such (tax, penalty or interest) a notice of demand in the prescribed form specifying the sum so payable." It was further urged that as in the present case there had been no notice of demand under S. 29 of the Income-tax Act specifically addressed to and served on the appellant, he could not become an "assessee indefault", neither would the tax payable by him become "an arrear" as to permit the invocation of the coercive process under S. 46(2) for recovery. (2) That the procedure for recovery enacted in Ss. 45 to 47 including S. 46(2) were confined in their application to "assessees" and "assessees in default" and did not apply to the class of "other persons liable to pay the tax" as against whom the filing of a suit for the recovery of the tax and the execution of decrees in such suits was the only machinery through which the tax liability of this class could be enforced. For the purposes of this case we do not consider it necessary to deal with the larger second question as to whether the expression "assessee" and "assessee in default" in Ss. 45 and 46 of the Income-tax Act, 1922, should be held to be confined to "assessees" as distinguished from "other persons liable to pay such tax" as these expressions occur in S. 29 of the Act, or whether the expression "assessee" when it occurs in Ss. 45 to 47 should be understood as defined in S. 2(2) as including "every person by whom income-tax . . . is payable", since we are clearly of the opinion that the appellant was an "assessee". Section 21 of the Excess Profits Tax Act carries a proviso which reads :"Provided that references in the said provisions to the assessee shall be construed as reference to a person to whom business this Act applies." 15. In view of this provision the appellant as the partner of the "business" to which "this Act applies" would be "an assessee" - and not merely an "other person liable to pay the tax." He would also be an "assessee in default" and the amount due from him would be an arrear since the notice of demand under S. 29 of the Income-tax Act was served on the managing partner - Thyagrajan Chettiar and such service would be tantamount to a notice served on the appellant himself by reason of S. 63 of the Income-tax Act. Indeed the entire basis on which the assessment proceedings completed after notice to Thyagrajan Chettiar as the managing-partner of Muthappa and Co. have been held by us to be binding on the appellant would preclude any argument of the type advanced to challenge the binding character of the notices served. The appellant was clearly an "assessee in default" within S. 46(1) of the Income-tax Act and the amount of tax and penalty due from him would be "an arrear" within S. 46(2). 16. We therefore hold that the proceedings for the recovery of the Excess Profits Tax could properly be taken and that the order of the High Court dismissing the appellants petition for the issue of a writ of prohibition was correct.
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1) That on the facts of the present case the appellant is precluded from pleading that the firm had been dissolved at the date of the assessment in 1951 and from raising any objection to the representative character of Thyagrajan Chettiar, (2) That on a proper construction of the provisions of the Excess Profits Tax Act, 1940, even if the firm of Muthappa and Co. should be held to have been dissolved before 1951 when the order of assessment was passed, the assessment of the managing agency business to Excess Profits Tax was properly and legally effected by notice to Thyagrajan ChettiarThe assertion by the appellant that the partnership was undissolved an continued its existence contained in his letter to the Income-tax Officer in February 1945, still held good and was backed up by the proceedings he took in the Civil Courts to maintain that stand. No doubt his claim had not been upheld by the Subordinate Judge, but by the appeal that he filed, he rendered the matter res sub judice and till the decision of the High Court in 1953 the appellant could not obviously suggest any particular date as the date of the dissolution. The submission of learned Counsel which proceeds on the assumption that there was a dissolution of the firm on March 4, 1943; or on March 10, 1949 - which was the date fixed by the High Court by its judgment of 1953, has to be rejected as wholly inconsistent with the contentions urged by the appellant in the Civil suit and the appeal therefrom. In the circumstances, the Income-tax Officer could not be blamed for treating the firm as in existence and similarly the Excess Profits Tax Officer also. It was common ground that at the date the Excess Profits Tax Officer started proceedings for assessment, the appellant had filed an appeal against the judgment of the Subordinate Judge in O. S. 50 of 1946 and the same was pending in the High Court and that it was only in 1953 that the appeal was disposed ofhe contention now urged before us was, that as the High Court had held that the firm should be treated as having been dissolved as and from March 10, 1949, the issue of any notice to Thyagrajan Chettiar as the managing partner of the firm was invalid and the assessment proceedings completed on that basis would also be illegal. If the contention of the appellant were to prevail it would mean that the validity or otherwise of the assessment order would be retrospectively determined by the result of the appellants appeal which was pending before the High Court so that if the High Court had held that the firm should be treated as dissolved only on the date of its judgment in 1953, the assessment would be valid but that if the High Court had fixed the date if dissolution on some date earlier than March 31, 1951, the assessment would be deemed invalid. This argument has only to be stated to be rejected. When this aspect of the matter was put to learned Counsel for the appellant, he fairly conceded that he could not on the facts of this case maintain to position that the order of assessment to Excess Profits Tax was vitiated because of the alleged disruption of the firm of Muthappa and Co. before the date of that order7. The other answer to the submission is that even assuming that the firm of Muthappa and Co. had been in fact dissolved on some date anterior to the assessment of the managing agency business to Excess Profits Tax, that would be affect the validity of an assessment order passed after notice to the person in management of the business during the chargeable accounting periods, since it was not the firm but "the business" that was the unit of assessment15. In view of this provision the appellant as the partner of the "business" to which "this Act applies" would be "an assessee" - and not merely an "other person liable to pay the tax." He would also be an "assessee in default" and the amount due from him would be an arrear since the notice of demand under S. 29 of the Income-tax Act was served on the managing partner - Thyagrajan Chettiar and such service would be tantamount to a notice served on the appellant himself by reason of S. 63 of the Income-tax Act. Indeed the entire basis on which the assessment proceedings completed after notice to Thyagrajan Chettiar as the managing-partner of Muthappa and Co. have been held by us to be binding on the appellant would preclude any argument of the type advanced to challenge the binding character of the notices served. The appellant was clearly an "assessee in default" within S. 46(1) of the Income-tax Act and the amount of tax and penalty due from him would be "an arrear" within S. 46(2)16. We therefore hold that the proceedings for the recovery of the Excess Profits Tax could properly be taken and that the order of the High Court dismissing the appellants petition for the issue of a writ of prohibition was correct.
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V.N.Vasudeva Vs. Seth Kirorimal Luhariwala | by the tenant within one month of the date on which the standard rent is fixed or such further time as the Controller may allow in this behalf..................(6) If a tenant makes payment or deposit as required by sub-section (1) or sub-section (3), no order shall be made for the recovery of possession on the ground of default in the payment of rent by the tenant but the Controller may allow such costs as he may deem fit to the landlord.(7) If a tenant fails to make payment or deposit as required by this section the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application."It will be noticed that sub-section (3) also contemplates payment of interim rent determined by the controller before the entire dispute is settled. sub-section (6) puts the case under sub-s. (1) and sub-s. (3) on the same footing and makes no distinction between them. It is also possible to visualise cases in which the tenant may deposit the amount of rent under protest and claim that his defence be tried. It is not that even on the deposit of the arrears of rent in these circumstances the case would come to an end. The latter part of sub-section (1) further shows that not only the arrears have to be deposited but rent as it falls due has to be deposited month by month by the 15th of each succeeding month. This also shows that the order under sub-section (1) is not a final order but is preliminary to the trial of the case and is made only where the rent has in fact not been paid. For the purpose of an interim order it was not necessary that there should have been a full trial. The Rent Controller had the affidavit of the appellant and he could judge whether in the circumstances of the case, an interim order ought or ought not to be made. He came to the conclusion that the rent was not paid and the plea that it was being withheld under an agreement was an after-thought and not true. The High Court and the Rent Control Tribunal have agreed with this view of the Rent Controller and the conclusion appears, to us to be sound. Once such a conclusion is reached, it is quite manifest that the order was made after affording an opportunity to the appellant to be heard. No doubt, the appellant is entitled to lead oral evidence in regard to the agreement he alleges, but for that he will have an opportunity hereafter. At the moment, he is being asked to deposit the arrears in count which admittedly are outstanding.10. Mr. Desai next contended that the notice under S. 46 (5A) amounted to a garnishee order and the appellant could not, while the notice stood, make any payment without incurring personal liability. There was no question of a personal liability because the Rent Controller had stated in his order that the amount would not be paid to anyone till the clearance certificate was obtained from the Income-tax Department. The Rent Controller had informed the Income-tax Authorities and the appellant ran no risk in depositing the arrears of rent in the circumstances.11. It was contended that the notice under S. 46(5A) amounted to an attachment of the rent in the hands of the appellant and reference was made to the provisions of S. 46 subs. 5A para 5. The argument overlooks the next para which provides:"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 the 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."If there was an agreement between the parties and Kirorimal was indebted for such a large amount, the appellant could have objected on the ground that he did not hold any money for or on account of the assessee and then he would not have been required to pay any sum to the Income-tax Officer. The appellant did nothing in the matter except to deny the payment to everyone. He paid nothing to the Income-tax Officer, declined to deposit the money before the Rent Controller and refused to recognise the demands by the Receiver and his landlord. In other words, he was trying to take full advantage of the law, when he could have informed the Income-tax Officer about his own position and paid the money to the Rent Controller subject to its being paid to the Income-tax Department.12. Reference was made in this connection to a decision of the Calcutta High Court reported in Ramesh Chandra v. Sm. Subodhbala Dasi, AIR 1952 Cal 198 in which Harries, C. J. observed that before making an order for the deposit of the rent, a full enquiry should be made. That was a case in which the tenant had pleaded that there was an agreement between him and the landlord that any, amount spent on repairs would be set off against the rent. Harries, C. J. held that without ascertaining the truth of the plea that a large sum had been spent on repairs, an order to deposit the entire arrears of rent ought not to have been made. It is quite clear that the facts there were entirely different. Payment by the landlord for repairs was a part of the tenancy agreement and rent under that tenancy could not be calculated without advertence to every term of the agreement of tenancy. Here the special agreement which is pleaded is outside the tenancy agreement and allegation about the special agreement has been held to be an afterthought and false. It is therefore difficult to apply the ruling to the present circumstances. | 0[ds]The letter itself does not show that there was any such agreement.In fact it shows the contrary where itbalance of your fees will be paid latter at the time of finalshows that the appellant was not entitled to retain the rent in his hands, and the Tribunals below were justified in saying that the plea about theagreement was anbecause till September 14, 1959, the appellant had not mentioned such an agreement. We are also satisfied that the plea was a mere device to retain the money and to avoid paying the rent. It must be remembered that there were as many as four claimants, viz., theOfficer, the Receiver and Kirorimal in person and Kirorimal as Receiver, but the appellant avoided each of these in turn by pointing to the others, and in this way continued to occupy the premises without payment of anyIn our opinion, this reading is notwill be noticed that sub-section (3) also contemplates payment of interim rent determined by the controller before the entire dispute is settled. sub-section (6) puts the case under sub-s. (1) and sub-s. (3) on the same footing and makes no distinction between them. It is also possible to visualise cases in which the tenant may deposit the amount of rent under protest and claim that his defence be tried. It is not that even on the deposit of the arrears of rent in these circumstances the case would come to an end. The latter part of sub-section (1) further shows that not only the arrears have to be deposited but rent as it falls due has to be deposited month by month by the 15th of each succeeding month. This also shows that the order under sub-section (1) is not a final order but is preliminary to the trial of the case and is made only where the rent has in fact not been paid. For the purpose of an interim order it was not necessary that there should have been a full trial. The Rent Controller had the affidavit of the appellant and he could judge whether in the circumstances of the case, an interim order ought or ought not to be made. He came to the conclusion that the rent was not paid and the plea that it was being withheld under anagreement was anafter-thought and not true. The High Court and the Rent Control Tribunal have agreed with this view of the Rent Controller and the conclusion appears, to us to be sound. Once such a conclusion is reached, it is quite manifest that the order was made after affording an opportunity to the appellant to be heard. No doubt, the appellant is entitled to lead oral evidence in regard to the agreement he alleges, but for that he will have an opportunitythere was an agreement between the parties and Kirorimal was indebted for such a large amount, the appellant could have objected on the ground that he did not hold any money for or on account of the assessee and then he would not have been required to pay any sum to the Income-tax Officer. The appellant did nothing in the matter except to deny the payment to everyone. He paid nothing to the Income-tax Officer, declined to deposit the money before the Rent Controller and refused to recognise the demands by the Receiver and his landlord. In other words, he was trying to take full advantage of the law, when he could have informed the Income-tax Officer about his own position and paid the money to the Rent Controller subject to its being paid to the Income-taxis quite clear that the facts there were entirely different. Payment by the landlord for repairs was a part of the tenancy agreement and rent under that tenancy could not be calculated without advertence to every term of the agreement of tenancy. Here the special agreement which is pleaded is outside the tenancy agreement and allegation about the special agreement has been held to be an afterthought and false. It is therefore difficult to apply the ruling to the present circumstances. | 0 | 3,762 | 734 | ### 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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by the tenant within one month of the date on which the standard rent is fixed or such further time as the Controller may allow in this behalf..................(6) If a tenant makes payment or deposit as required by sub-section (1) or sub-section (3), no order shall be made for the recovery of possession on the ground of default in the payment of rent by the tenant but the Controller may allow such costs as he may deem fit to the landlord.(7) If a tenant fails to make payment or deposit as required by this section the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application."It will be noticed that sub-section (3) also contemplates payment of interim rent determined by the controller before the entire dispute is settled. sub-section (6) puts the case under sub-s. (1) and sub-s. (3) on the same footing and makes no distinction between them. It is also possible to visualise cases in which the tenant may deposit the amount of rent under protest and claim that his defence be tried. It is not that even on the deposit of the arrears of rent in these circumstances the case would come to an end. The latter part of sub-section (1) further shows that not only the arrears have to be deposited but rent as it falls due has to be deposited month by month by the 15th of each succeeding month. This also shows that the order under sub-section (1) is not a final order but is preliminary to the trial of the case and is made only where the rent has in fact not been paid. For the purpose of an interim order it was not necessary that there should have been a full trial. The Rent Controller had the affidavit of the appellant and he could judge whether in the circumstances of the case, an interim order ought or ought not to be made. He came to the conclusion that the rent was not paid and the plea that it was being withheld under an agreement was an after-thought and not true. The High Court and the Rent Control Tribunal have agreed with this view of the Rent Controller and the conclusion appears, to us to be sound. Once such a conclusion is reached, it is quite manifest that the order was made after affording an opportunity to the appellant to be heard. No doubt, the appellant is entitled to lead oral evidence in regard to the agreement he alleges, but for that he will have an opportunity hereafter. At the moment, he is being asked to deposit the arrears in count which admittedly are outstanding.10. Mr. Desai next contended that the notice under S. 46 (5A) amounted to a garnishee order and the appellant could not, while the notice stood, make any payment without incurring personal liability. There was no question of a personal liability because the Rent Controller had stated in his order that the amount would not be paid to anyone till the clearance certificate was obtained from the Income-tax Department. The Rent Controller had informed the Income-tax Authorities and the appellant ran no risk in depositing the arrears of rent in the circumstances.11. It was contended that the notice under S. 46(5A) amounted to an attachment of the rent in the hands of the appellant and reference was made to the provisions of S. 46 subs. 5A para 5. The argument overlooks the next para which provides:"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 the 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."If there was an agreement between the parties and Kirorimal was indebted for such a large amount, the appellant could have objected on the ground that he did not hold any money for or on account of the assessee and then he would not have been required to pay any sum to the Income-tax Officer. The appellant did nothing in the matter except to deny the payment to everyone. He paid nothing to the Income-tax Officer, declined to deposit the money before the Rent Controller and refused to recognise the demands by the Receiver and his landlord. In other words, he was trying to take full advantage of the law, when he could have informed the Income-tax Officer about his own position and paid the money to the Rent Controller subject to its being paid to the Income-tax Department.12. Reference was made in this connection to a decision of the Calcutta High Court reported in Ramesh Chandra v. Sm. Subodhbala Dasi, AIR 1952 Cal 198 in which Harries, C. J. observed that before making an order for the deposit of the rent, a full enquiry should be made. That was a case in which the tenant had pleaded that there was an agreement between him and the landlord that any, amount spent on repairs would be set off against the rent. Harries, C. J. held that without ascertaining the truth of the plea that a large sum had been spent on repairs, an order to deposit the entire arrears of rent ought not to have been made. It is quite clear that the facts there were entirely different. Payment by the landlord for repairs was a part of the tenancy agreement and rent under that tenancy could not be calculated without advertence to every term of the agreement of tenancy. Here the special agreement which is pleaded is outside the tenancy agreement and allegation about the special agreement has been held to be an afterthought and false. It is therefore difficult to apply the ruling to the present circumstances.
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### Explanation:
The letter itself does not show that there was any such agreement.In fact it shows the contrary where itbalance of your fees will be paid latter at the time of finalshows that the appellant was not entitled to retain the rent in his hands, and the Tribunals below were justified in saying that the plea about theagreement was anbecause till September 14, 1959, the appellant had not mentioned such an agreement. We are also satisfied that the plea was a mere device to retain the money and to avoid paying the rent. It must be remembered that there were as many as four claimants, viz., theOfficer, the Receiver and Kirorimal in person and Kirorimal as Receiver, but the appellant avoided each of these in turn by pointing to the others, and in this way continued to occupy the premises without payment of anyIn our opinion, this reading is notwill be noticed that sub-section (3) also contemplates payment of interim rent determined by the controller before the entire dispute is settled. sub-section (6) puts the case under sub-s. (1) and sub-s. (3) on the same footing and makes no distinction between them. It is also possible to visualise cases in which the tenant may deposit the amount of rent under protest and claim that his defence be tried. It is not that even on the deposit of the arrears of rent in these circumstances the case would come to an end. The latter part of sub-section (1) further shows that not only the arrears have to be deposited but rent as it falls due has to be deposited month by month by the 15th of each succeeding month. This also shows that the order under sub-section (1) is not a final order but is preliminary to the trial of the case and is made only where the rent has in fact not been paid. For the purpose of an interim order it was not necessary that there should have been a full trial. The Rent Controller had the affidavit of the appellant and he could judge whether in the circumstances of the case, an interim order ought or ought not to be made. He came to the conclusion that the rent was not paid and the plea that it was being withheld under anagreement was anafter-thought and not true. The High Court and the Rent Control Tribunal have agreed with this view of the Rent Controller and the conclusion appears, to us to be sound. Once such a conclusion is reached, it is quite manifest that the order was made after affording an opportunity to the appellant to be heard. No doubt, the appellant is entitled to lead oral evidence in regard to the agreement he alleges, but for that he will have an opportunitythere was an agreement between the parties and Kirorimal was indebted for such a large amount, the appellant could have objected on the ground that he did not hold any money for or on account of the assessee and then he would not have been required to pay any sum to the Income-tax Officer. The appellant did nothing in the matter except to deny the payment to everyone. He paid nothing to the Income-tax Officer, declined to deposit the money before the Rent Controller and refused to recognise the demands by the Receiver and his landlord. In other words, he was trying to take full advantage of the law, when he could have informed the Income-tax Officer about his own position and paid the money to the Rent Controller subject to its being paid to the Income-taxis quite clear that the facts there were entirely different. Payment by the landlord for repairs was a part of the tenancy agreement and rent under that tenancy could not be calculated without advertence to every term of the agreement of tenancy. Here the special agreement which is pleaded is outside the tenancy agreement and allegation about the special agreement has been held to be an afterthought and false. It is therefore difficult to apply the ruling to the present circumstances.
|
Mir Ghulam Hussain & Ors Vs. Union Of India & Ors | written at the close of each financial year and are required to be completed before the end of that year and any adverse entry made against an officer has to be communicated to that officer so that the officer concerned can make a representation about such remarks. It is alleged that in the particular year concerned i.e. 1968, the petitioners had not received any communication from the authorities which indicated that there was anything adverse against them. But after the selection had been completed and after the writ petition had been filed the petitioners Nos. 2, 20 and 25 received communications appertaining to their confidential rolls which showed the existence of certain adverse remarks against them. The suggestion is that the selection committee had considered in respect of these three officers certain remarks which could not have been finalised as they had not been communicated to the petitioners before September 1968. This complaint is one which does not appear in the petition. The complaint has been ingeniously construected by the petitioners counsel by piecing together an averment made in the petition with certain statements made in subsequent affidavits. In para 26 of the petition there is an averment that there was no adverse remark against the petitioners. The suggestion obviously sought to be made out at that stage was this that since there was nothing adverse against them, the petitioners were entitled to be selected.This claim is, of course, completely misconceived for the simple reason that promotion is not made on the basis of absence of complaint but on the basis of positive merit. Absence of adverse remarks is no criterion of the quality of an officer.In reply to this statement in the petition, however, Shri Bansi Lal Kaul in his affidavit treated the petitioners averment about non-communication of adverse remarks as a complaint and stated that the adverse remarks in all cases had been communicated to the petitioners who had made representations against the adverse entries and that the State Government thereafter had either rejected the representations or modified the entries. Taking advantage of this reply of the State Government the petitioners in a rejoinder have given a slight twist to their original stand and come out with a fresh allegation. They point out for the first time that petitioners Nos. 2, 20 and 25 had received communications regarding adverse remarks after the selection had been completed. The learned counsel made an ingenious argument out of this by raising a new contention that at least some adverse remarks which had not been communicated to these three petitioners were considered by the Selection Committee at the time of making the selection. This complaint, apart from being an afterthought is completely flimsy. The particulars regarding the adverse remarks have not been supplied and no attempt has been made to show that these remarks had been posted on the confidential rolls before the actual selection took place or that these confidential remarks had prejudiced the petitioners concerned.9. The fourth ground of complaint was that some officers who could not be considered for promotion to Indian Administrative Service have been selected by the Committee. The suggestion is that if eligibility had been correctly determined there would have been some vacancies against which some of the petitioners could have been absorbed.In our opinion if there is any complaint about the appointment or promotion of an officer who is not eligible under the rules to be promoted or appointed, the proper remedy is to make an application for the issue of a writ of quo warranto and since the petitioners have not done so, this particular complaint cannot be entertained in this petition.10. The last allegation of the petitioners is that the selection has been mala fide. Mala fide is sought to be proved by the fact that State Government had on 12 September 1968 added certain posts to the existing strength of the Senior Scale of the Service and that some of the respondents were confirmed in the vacancies created by such additions with effect from 1 August 1968. The intention behind this addition to the strength of Senior Scale of the Indian Administrative Service was to benefit those respondents who, the petitioners allege, are the favourites of Government. We are not disposed to take this plea of mala fide seriously. After all the Chairman of the Union Public Service Commission was presiding over the deliberation of the Committee and there is and can be no allegation of mala fide against him or against the Union Public Service Commission.Under Rule 4 of the Kashmir Administrative Service Rules the State Government is competent to revise the cadre from time to time. It is under these rules that the Government revised the cadre strength partly by converting some temporary posts included in the temporary cadre strength to the permanent cadre strength and partly by adding some ex-cadre posts to the permanent strength of the Kashmir Administrative Service.We have no hesitation in accepting Shri Bansi Lal Kauls affidavit that these were all done in the exigencies of service. In any case, the revision of the cadre strength did not in any way affect the seniority or other rights of the petitioners and they have no grounds for complaint. It has been further pointed out by Shri Bansi Lal Kaul that it is on the basis of the revised notification that petitioners Nos. 10, 11, 18, 22, 23, 24, 25 and 26 became eligible for being considered by the Selection Committee for inclusion in the list. Shri Kaul also tells us that the revised notification did not have the effect of omitting from the list of eligible officers any officer who would have otherwise been in that list. In these circumstances this allegation of mala fide is completely misconceived.11. We have now considered all the complaints of the petitioners . There is no substance in any of these complaints and the petition must, therefore, be dismissed. The rule is discharged, but we make no order as to costs. | 0[ds]Shri Damley, the Chairman of the Union Public Service Commission has himself rebutted this allegation in an affidavit in which he says that he reached Srinagar actually on 12 September 1968 and that the selection committee had two sessions on 13 September 1968. Shri Damley states that the total number of eligible officers was not 150 but 81. The Government of Jammu and Kashmir had furnished a list of 86 officers of which 5 were not found to be eligible for selection at all. He points out that it is not correct to say that the service records of all the eligible officers were scrutinised by him only on 13 September 1968. On the contrary, he says, the service records of 43 out of 81 eligible officers had been sent in advance by the Government of Jammu and Kashmir to the Public Service Commission on 26 July 1968. These records had been received by the Union Public Service Commission on 9 August 1968 and placed before Shri Damley for his perusal on 10 September 1968. The records of the remaining 38 officers were made available to him when he reached Srinagar on 12 September 1968. In view of this affidavit of Shri Damley the petitioners complaint must be rejected. There was some feeble attempt on the part of the counsel appearing for the petitioners to make out a case that even if the Chairman had perused all the records it was not possible for all the members of the committee to have perused them during the two sittings held at Srinagar on 13 September 1968. This is a new case not to be found in the petition and, besides, the Chairman himself has stated in clear and categorical language that the rival claims of all the eligible officers had been duly considered by the entire Selection Committee. We have no manner of hesitation in accepting this statement of Shriattention was drawn to a list of names annexed to the petition as annexure F in whichd the names of the persons who have not been selected are marked with a cross. In that list it appears that the names of some of the officers who have not been selected appear in groups. This, however, is no proof that the officers were rejected in groups. First, we do not know the basis on which the list in annexure F has been prepared. But even assuming that the list has been prepared strictly according to seniority, the mere fact that the names of some of the officers who have been rejected appear on that list consequently is no indication that they have been rejected in an arbitrary manner. In the counter-affidavit of Shri Bansi Lal Kaul, Under Secretary to the Government of Jammu and Kashmir, it has been stated clearly that the records of all the eligible officers were examined by the Selection Committee to determine their merit and suitability for inclusion in the select list. The selection committee consisted, among others, of the Chief Secretary of the State Government and two other super time-scale officers of the Indian Administrative Service of the State cadre. All these three members of the State Government had, we are told, first-hand knowledge of the suitability and performance of the officers whose cases were considered by the Committee. Besides, the performance of the officers was judged on the basis of the service records which it is contended, furnish a better guide for evaluation of the quality of an officer than a personal interview for a short duration could possibly have furnished. Shri Bansi Lal Kaul further states in paragraph 21 of his affidavit that officers at serial Nos. 1, 77, 78, 79, 80, 81, 82, 83, 84 and 85 of annexure F were not eligible for being considered by the selection committee as they had not completed eight years service in a post of a Deputy Collector or any post declared equivalent thereto on 1 January 1968. Certain other officers viz. officers at serial Nos. 26, 30, 34, 41, 43, 56, 59, 64, 72, 75 and 86 of annexure F had already crossed the age of 52 years and could not ordinarily be considered for inclusion under Regulation 4 (2) of the Regulation. When officers are excluded on such grounds it is not surprising that their names appear often in a bunch in that list. We accept this explanation of Shri Bansi Lal Kaul and are not prepared to entertain the counsels suggestion that the exclusion of a number of officers in consecutive order indicates an exercise of arbitrary and unguidedafter the selection had been completed and after the writ petition had been filed the petitioners Nos. 2, 20 and 25 received communications appertaining to their confidential rolls which showed the existence of certain adverse remarks against them. The suggestion is that the selection committee had considered in respect of these three officers certain remarks which could not have been finalised as they had not been communicated to the petitioners before September 1968. This complaint is one which does not appear in the petition. The complaint has been ingeniously construected by the petitioners counsel by piecing together an averment made in the petition with certain statements made in subsequent affidavits. In para 26 of the petition there is an averment that there was no adverse remark against the petitioners. The suggestion obviously sought to be made out at that stage was this that since there was nothing adverse against them, the petitioners were entitled to be selected.This claim is, of course, completely misconceived for the simple reason that promotion is not made on the basis of absence of complaint but on the basis of positive merit. Absence of adverse remarks is no criterion of the quality of an officer.In reply to this statement in the petition, however, Shri Bansi Lal Kaul in his affidavit treated the petitioners averment about non-communication of adverse remarks as a complaint and stated that the adverse remarks in all cases had been communicated to the petitioners who had made representations against the adverse entries and that the State Government thereafter had either rejected the representations or modified the entries. Taking advantage of this reply of the State Government the petitioners in a rejoinder have given a slight twist to their original stand and come out with a fresh allegation. They point out for the first time that petitioners Nos. 2, 20 and 25 had received communications regarding adverse remarks after the selection had been completed. The learned counsel made an ingenious argument out of this by raising a new contention that at least some adverse remarks which had not been communicated to these three petitioners were considered by the Selection Committee at the time of making the selection. This complaint, apart from being an afterthought is completely flimsy. The particulars regarding the adverse remarks have not been supplied and no attempt has been made to show that these remarks had been posted on the confidential rolls before the actual selection took place or that these confidential remarks had prejudiced the petitionersour opinion if there is any complaint about the appointment or promotion of an officer who is not eligible under the rules to be promoted or appointed, the proper remedy is to make an application for the issue of a writ of quo warranto and since the petitioners have not done so, this particular complaint cannot be entertained in thisfide is sought to be proved by the fact that State Government had on 12 September 1968 added certain posts to the existing strength of the Senior Scale of the Service and that some of the respondents were confirmed in the vacancies created by such additions with effect from 1 August 1968. The intention behind this addition to the strength of Senior Scale of the Indian Administrative Service was to benefit those respondents who, the petitioners allege, are the favourites of Government. We are not disposed to take this plea of mala fide seriously. After all the Chairman of the Union Public Service Commission was presiding over the deliberation of the Committee and there is and can be no allegation of mala fide against him or against the Union Public Service Commission.Under Rule 4 of the Kashmir Administrative Service Rules the State Government is competent to revise the cadre from time to time. It is under these rules that the Government revised the cadre strength partly by converting some temporary posts included in the temporary cadre strength to the permanent cadre strength and partly by adding some ex-cadre posts to the permanent strength of the Kashmir Administrative Service.We have no hesitation in accepting Shri Bansi Lal Kauls affidavit that these were all done in the exigencies of service. In any case, the revision of the cadre strength did not in any way affect the seniority or other rights of the petitioners and they have no grounds for complaint. It has been further pointed out by Shri Bansi Lal Kaul that it is on the basis of the revised notification that petitioners Nos. 10, 11, 18, 22, 23, 24, 25 and 26 became eligible for being considered by the Selection Committee for inclusion in the list. Shri Kaul also tells us that the revised notification did not have the effect of omitting from the list of eligible officers any officer who would have otherwise been in that list. In these circumstances this allegation of mala fide is completely misconceived.11. We have now considered all the complaints of the petitioners . There is no substance in any of these complaints and the petition must, therefore, be dismissed. The rule is discharged, but we make no order as to costs. | 0 | 3,396 | 1,727 | ### 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:
written at the close of each financial year and are required to be completed before the end of that year and any adverse entry made against an officer has to be communicated to that officer so that the officer concerned can make a representation about such remarks. It is alleged that in the particular year concerned i.e. 1968, the petitioners had not received any communication from the authorities which indicated that there was anything adverse against them. But after the selection had been completed and after the writ petition had been filed the petitioners Nos. 2, 20 and 25 received communications appertaining to their confidential rolls which showed the existence of certain adverse remarks against them. The suggestion is that the selection committee had considered in respect of these three officers certain remarks which could not have been finalised as they had not been communicated to the petitioners before September 1968. This complaint is one which does not appear in the petition. The complaint has been ingeniously construected by the petitioners counsel by piecing together an averment made in the petition with certain statements made in subsequent affidavits. In para 26 of the petition there is an averment that there was no adverse remark against the petitioners. The suggestion obviously sought to be made out at that stage was this that since there was nothing adverse against them, the petitioners were entitled to be selected.This claim is, of course, completely misconceived for the simple reason that promotion is not made on the basis of absence of complaint but on the basis of positive merit. Absence of adverse remarks is no criterion of the quality of an officer.In reply to this statement in the petition, however, Shri Bansi Lal Kaul in his affidavit treated the petitioners averment about non-communication of adverse remarks as a complaint and stated that the adverse remarks in all cases had been communicated to the petitioners who had made representations against the adverse entries and that the State Government thereafter had either rejected the representations or modified the entries. Taking advantage of this reply of the State Government the petitioners in a rejoinder have given a slight twist to their original stand and come out with a fresh allegation. They point out for the first time that petitioners Nos. 2, 20 and 25 had received communications regarding adverse remarks after the selection had been completed. The learned counsel made an ingenious argument out of this by raising a new contention that at least some adverse remarks which had not been communicated to these three petitioners were considered by the Selection Committee at the time of making the selection. This complaint, apart from being an afterthought is completely flimsy. The particulars regarding the adverse remarks have not been supplied and no attempt has been made to show that these remarks had been posted on the confidential rolls before the actual selection took place or that these confidential remarks had prejudiced the petitioners concerned.9. The fourth ground of complaint was that some officers who could not be considered for promotion to Indian Administrative Service have been selected by the Committee. The suggestion is that if eligibility had been correctly determined there would have been some vacancies against which some of the petitioners could have been absorbed.In our opinion if there is any complaint about the appointment or promotion of an officer who is not eligible under the rules to be promoted or appointed, the proper remedy is to make an application for the issue of a writ of quo warranto and since the petitioners have not done so, this particular complaint cannot be entertained in this petition.10. The last allegation of the petitioners is that the selection has been mala fide. Mala fide is sought to be proved by the fact that State Government had on 12 September 1968 added certain posts to the existing strength of the Senior Scale of the Service and that some of the respondents were confirmed in the vacancies created by such additions with effect from 1 August 1968. The intention behind this addition to the strength of Senior Scale of the Indian Administrative Service was to benefit those respondents who, the petitioners allege, are the favourites of Government. We are not disposed to take this plea of mala fide seriously. After all the Chairman of the Union Public Service Commission was presiding over the deliberation of the Committee and there is and can be no allegation of mala fide against him or against the Union Public Service Commission.Under Rule 4 of the Kashmir Administrative Service Rules the State Government is competent to revise the cadre from time to time. It is under these rules that the Government revised the cadre strength partly by converting some temporary posts included in the temporary cadre strength to the permanent cadre strength and partly by adding some ex-cadre posts to the permanent strength of the Kashmir Administrative Service.We have no hesitation in accepting Shri Bansi Lal Kauls affidavit that these were all done in the exigencies of service. In any case, the revision of the cadre strength did not in any way affect the seniority or other rights of the petitioners and they have no grounds for complaint. It has been further pointed out by Shri Bansi Lal Kaul that it is on the basis of the revised notification that petitioners Nos. 10, 11, 18, 22, 23, 24, 25 and 26 became eligible for being considered by the Selection Committee for inclusion in the list. Shri Kaul also tells us that the revised notification did not have the effect of omitting from the list of eligible officers any officer who would have otherwise been in that list. In these circumstances this allegation of mala fide is completely misconceived.11. We have now considered all the complaints of the petitioners . There is no substance in any of these complaints and the petition must, therefore, be dismissed. The rule is discharged, but we make no order as to costs.
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### Explanation:
79, 80, 81, 82, 83, 84 and 85 of annexure F were not eligible for being considered by the selection committee as they had not completed eight years service in a post of a Deputy Collector or any post declared equivalent thereto on 1 January 1968. Certain other officers viz. officers at serial Nos. 26, 30, 34, 41, 43, 56, 59, 64, 72, 75 and 86 of annexure F had already crossed the age of 52 years and could not ordinarily be considered for inclusion under Regulation 4 (2) of the Regulation. When officers are excluded on such grounds it is not surprising that their names appear often in a bunch in that list. We accept this explanation of Shri Bansi Lal Kaul and are not prepared to entertain the counsels suggestion that the exclusion of a number of officers in consecutive order indicates an exercise of arbitrary and unguidedafter the selection had been completed and after the writ petition had been filed the petitioners Nos. 2, 20 and 25 received communications appertaining to their confidential rolls which showed the existence of certain adverse remarks against them. The suggestion is that the selection committee had considered in respect of these three officers certain remarks which could not have been finalised as they had not been communicated to the petitioners before September 1968. This complaint is one which does not appear in the petition. The complaint has been ingeniously construected by the petitioners counsel by piecing together an averment made in the petition with certain statements made in subsequent affidavits. In para 26 of the petition there is an averment that there was no adverse remark against the petitioners. The suggestion obviously sought to be made out at that stage was this that since there was nothing adverse against them, the petitioners were entitled to be selected.This claim is, of course, completely misconceived for the simple reason that promotion is not made on the basis of absence of complaint but on the basis of positive merit. Absence of adverse remarks is no criterion of the quality of an officer.In reply to this statement in the petition, however, Shri Bansi Lal Kaul in his affidavit treated the petitioners averment about non-communication of adverse remarks as a complaint and stated that the adverse remarks in all cases had been communicated to the petitioners who had made representations against the adverse entries and that the State Government thereafter had either rejected the representations or modified the entries. Taking advantage of this reply of the State Government the petitioners in a rejoinder have given a slight twist to their original stand and come out with a fresh allegation. They point out for the first time that petitioners Nos. 2, 20 and 25 had received communications regarding adverse remarks after the selection had been completed. The learned counsel made an ingenious argument out of this by raising a new contention that at least some adverse remarks which had not been communicated to these three petitioners were considered by the Selection Committee at the time of making the selection. This complaint, apart from being an afterthought is completely flimsy. The particulars regarding the adverse remarks have not been supplied and no attempt has been made to show that these remarks had been posted on the confidential rolls before the actual selection took place or that these confidential remarks had prejudiced the petitionersour opinion if there is any complaint about the appointment or promotion of an officer who is not eligible under the rules to be promoted or appointed, the proper remedy is to make an application for the issue of a writ of quo warranto and since the petitioners have not done so, this particular complaint cannot be entertained in thisfide is sought to be proved by the fact that State Government had on 12 September 1968 added certain posts to the existing strength of the Senior Scale of the Service and that some of the respondents were confirmed in the vacancies created by such additions with effect from 1 August 1968. The intention behind this addition to the strength of Senior Scale of the Indian Administrative Service was to benefit those respondents who, the petitioners allege, are the favourites of Government. We are not disposed to take this plea of mala fide seriously. After all the Chairman of the Union Public Service Commission was presiding over the deliberation of the Committee and there is and can be no allegation of mala fide against him or against the Union Public Service Commission.Under Rule 4 of the Kashmir Administrative Service Rules the State Government is competent to revise the cadre from time to time. It is under these rules that the Government revised the cadre strength partly by converting some temporary posts included in the temporary cadre strength to the permanent cadre strength and partly by adding some ex-cadre posts to the permanent strength of the Kashmir Administrative Service.We have no hesitation in accepting Shri Bansi Lal Kauls affidavit that these were all done in the exigencies of service. In any case, the revision of the cadre strength did not in any way affect the seniority or other rights of the petitioners and they have no grounds for complaint. It has been further pointed out by Shri Bansi Lal Kaul that it is on the basis of the revised notification that petitioners Nos. 10, 11, 18, 22, 23, 24, 25 and 26 became eligible for being considered by the Selection Committee for inclusion in the list. Shri Kaul also tells us that the revised notification did not have the effect of omitting from the list of eligible officers any officer who would have otherwise been in that list. In these circumstances this allegation of mala fide is completely misconceived.11. We have now considered all the complaints of the petitioners . There is no substance in any of these complaints and the petition must, therefore, be dismissed. The rule is discharged, but we make no order as to costs.
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M/S. Shree Om Enterprises Pvt Ltd Vs. Bses Rajdhani Power Ltd | behalf of the plaintiff in the telegram dated 01.04.1992 (Ex.P-12) was, therefore, an after thought. In so far as the oral evidence of PW 1 is concerned it is submitted that the said witness had been inconsistent inasmuch as while denying that any inspection was carried out on 14.06.1991 in his examination-in-chief, the said witness in cross-examination had admitted that such an inspection had taken place. In this regard learned counsel has pointed out that in the evidence of DW 1 there is a clear reference to the fact that the representative of the plaintiff, though present at the time of inspection, had refused to sign the inspection report. Merely because DW 1 was not aware of the status of the person representing the plaintiff Company at the time of inspection, will not cast any doubt with regard to the holding of the inspection itself. Lastly, it is submitted that the plaintiff having exceeded the maximum permissible load for SIP consumers was liable for payment of surcharge and higher tariff in accordance with the terms and conditions of supply of electric power by the DESU. Similarly, the appellant having failed to install the requisite capacitor was also liable to pay surcharge as contemplated by the said terms and conditions of supply. It is on the aforesaid basis and in accordance with the terms and conditions of supply that the bill for Rs.3,38.378.02 for the period 06.06.1991 to February, 1992 was issued with the contemplation that if the same remained unpaid on or before 06.04.1992, electric supply to the premises of the plaintiff would be disconnected. 11. We have considered the submissions advanced before us. We have also perused the pleadings of the parties and the evidence of PW 1 and also DW 1 as well as the several documents brought on record including the notices dated 06.11.1991 and 03.12.1991 and the inspection report dated 14.6.1991 sent by the defendant to the plaintiff as well as the reply of the plaintiff dated 06.12.91 and the telegram dated 01.04.1992 in this regard. On such consideration what we find is that the present appeal raises what is pre-eminently a question of fact, namely, whether the Plaintiff had exceeded the sanctioned load as permissible for SIP consumers and whether the Plaintiff was responsible for low load factor as it had not installed the requisite capacitor. In a situation where three Courts have already dealt with the aforesaid question and have recorded concurrent opinions on the issue, it would be wholly inappropriate for this Court to go into the same unless an apparent perversity can be, ex-facie, found in the conclusions reached. It is from the aforesaid limited perspective that we had persuaded ourselves to go into the matter. On such consideration we find that the plaintiff in its reply dated 6.1.1992 submitted in response to the notices issued by the Defendant on 6.11.1991 and 3.12.1991 had only asserted that it is engaged in the manufacture and printing of calendars etc. and that it had not exceeded the sanctioned load. There is no positive stand taken with regard to the findings of the inspection as mentioned in the report dated 14.06.1991. Neither any evidence had been led by the plaintiff to establish that the machinery mentioned in the inspection note to have been found installed in its premises were not so installed or that such machinery was not used or utilized by the plaintiff for manufacture of PVC conduit pipes. It was incumbent on the part of the plaintiff, who had claimed in the suit that the report of inspection was incorrect, to prove the said facts by means of legally acceptable evidence. No such evidence was forthcoming, perhaps, because the plaintiff had taken the stand that no inspection at all was carried out. Though the plaintiff tried to prove the said fact i.e. that no inspection took place through PW 1, the evidence of the said witness on the aforesaid score is wholly inconsistent. The reliance placed on the evidence of DW 1 in this regard is also somewhat misplaced in as much as DW 1 had clearly stated that he was a member of the joint inspection team which had carried out the inspection on 14.6.1991 and that the report of inspection prepared was refused to be signed by the plaintiff’s representative though he was present at the time of inspection. The mere inability of the DW 1 to specify the status of the plaintiff’s representative present at the site would not, in any way, affect the credibility of the fact that an inspection was, infact, carried out. It has also to be noticed that the specific denial with regard to the business of manufacture of PVC conduit pipes in the premises of the plaintiff had come only in the telegram dated 01.04.1992 sent by the advocate representing the plaintiff. In the absence of any clear stand to the above effect in the reply of the plaintiff dated 6.12.1991, the subsequent plea put forth in the telegram dated 01.04.1992 must be understood to be an after thought on the part of the plaintiff and the result of an attempt to improve its case through its counsel.12. To make the discussions complete we would also like to observe in the present case that plaintiff was given an option to remove the excess load failing which it was made clear it will be charged at the higher rate of tariff. We have also found that the bill for Rs.3,38.378.02 for the period 06.06.1991 to February 1992 was prepared and submitted for payment by the plaintiff in accordance with the terms and conditions of supply in force in the DESU and that the said bill was prepared after consideration of the stand taken by the plaintiff in its reply dated 06.01.1992. No infirmity or illegality is disclosed in any of the actions of the defendant infringing any known right of the plaintiff so as to entitle it to a decree of perpetual injunction as prayed for. | 0[ds]It is from the aforesaid limited perspective that we had persuaded ourselves to go into the matter. On such consideration we find that the plaintiff in its reply dated 6.1.1992 submitted in response to the notices issued by the Defendant on 6.11.1991 and 3.12.1991 had only asserted that it is engaged in the manufacture and printing of calendars etc. and that it had not exceeded the sanctioned load. There is no positive stand taken with regard to the findings of the inspection as mentioned in the report dated 14.06.1991. Neither any evidence had been led by the plaintiff to establish that the machinery mentioned in the inspection note to have been found installed in its premises were not so installed or that such machinery was not used or utilized by the plaintiff for manufacture of PVC conduit pipes. It was incumbent on the part of the plaintiff, who had claimed in the suit that the report of inspection was incorrect, to prove the said facts by means of legally acceptable evidence. No such evidence was forthcoming, perhaps, because the plaintiff had taken the stand that no inspection at all was carried out. Though the plaintiff tried to prove the said fact i.e. that no inspection took place through PW 1, the evidence of the said witness on the aforesaid score is wholly inconsistent. The reliance placed on the evidence of DW 1 in this regard is also somewhat misplaced in as much as DW 1 had clearly stated that he was a member of the joint inspection team which had carried out the inspection on 14.6.1991 and that the report of inspection prepared was refused to be signed by therepresentative though he was present at the time of inspection. The mere inability of the DW 1 to specify the status of therepresentative present at the site would not, in any way, affect the credibility of the fact that an inspection was, infact, carried out. It has also to be noticed that the specific denial with regard to the business of manufacture of PVC conduit pipes in the premises of the plaintiff had come only in the telegram dated 01.04.1992 sent by the advocate representing the plaintiff. In the absence of any clear stand to the above effect in the reply of the plaintiff dated 6.12.1991, the subsequent plea put forth in the telegram dated 01.04.1992 must be understood to be an after thought on the part of the plaintiff and the result of an attempt to improve its case through its counsel.12. To make the discussions complete we would also like to observe in the present case that plaintiff was given an option to remove the excess load failing which it was made clear it will be charged at the higher rate of tariff. We have also found that the bill for Rs.3,38.378.02 for the period 06.06.1991 to February 1992 was prepared and submitted for payment by the plaintiff in accordance with the terms and conditions of supply in force in the DESU and that the said bill was prepared after consideration of the stand taken by the plaintiff in its reply dated 06.01.1992. No infirmity or illegality is disclosed in any of the actions of the defendant infringing any known right of the plaintiff so as to entitle it to a decree of perpetual injunction as prayed for. | 0 | 2,519 | 589 | ### 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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behalf of the plaintiff in the telegram dated 01.04.1992 (Ex.P-12) was, therefore, an after thought. In so far as the oral evidence of PW 1 is concerned it is submitted that the said witness had been inconsistent inasmuch as while denying that any inspection was carried out on 14.06.1991 in his examination-in-chief, the said witness in cross-examination had admitted that such an inspection had taken place. In this regard learned counsel has pointed out that in the evidence of DW 1 there is a clear reference to the fact that the representative of the plaintiff, though present at the time of inspection, had refused to sign the inspection report. Merely because DW 1 was not aware of the status of the person representing the plaintiff Company at the time of inspection, will not cast any doubt with regard to the holding of the inspection itself. Lastly, it is submitted that the plaintiff having exceeded the maximum permissible load for SIP consumers was liable for payment of surcharge and higher tariff in accordance with the terms and conditions of supply of electric power by the DESU. Similarly, the appellant having failed to install the requisite capacitor was also liable to pay surcharge as contemplated by the said terms and conditions of supply. It is on the aforesaid basis and in accordance with the terms and conditions of supply that the bill for Rs.3,38.378.02 for the period 06.06.1991 to February, 1992 was issued with the contemplation that if the same remained unpaid on or before 06.04.1992, electric supply to the premises of the plaintiff would be disconnected. 11. We have considered the submissions advanced before us. We have also perused the pleadings of the parties and the evidence of PW 1 and also DW 1 as well as the several documents brought on record including the notices dated 06.11.1991 and 03.12.1991 and the inspection report dated 14.6.1991 sent by the defendant to the plaintiff as well as the reply of the plaintiff dated 06.12.91 and the telegram dated 01.04.1992 in this regard. On such consideration what we find is that the present appeal raises what is pre-eminently a question of fact, namely, whether the Plaintiff had exceeded the sanctioned load as permissible for SIP consumers and whether the Plaintiff was responsible for low load factor as it had not installed the requisite capacitor. In a situation where three Courts have already dealt with the aforesaid question and have recorded concurrent opinions on the issue, it would be wholly inappropriate for this Court to go into the same unless an apparent perversity can be, ex-facie, found in the conclusions reached. It is from the aforesaid limited perspective that we had persuaded ourselves to go into the matter. On such consideration we find that the plaintiff in its reply dated 6.1.1992 submitted in response to the notices issued by the Defendant on 6.11.1991 and 3.12.1991 had only asserted that it is engaged in the manufacture and printing of calendars etc. and that it had not exceeded the sanctioned load. There is no positive stand taken with regard to the findings of the inspection as mentioned in the report dated 14.06.1991. Neither any evidence had been led by the plaintiff to establish that the machinery mentioned in the inspection note to have been found installed in its premises were not so installed or that such machinery was not used or utilized by the plaintiff for manufacture of PVC conduit pipes. It was incumbent on the part of the plaintiff, who had claimed in the suit that the report of inspection was incorrect, to prove the said facts by means of legally acceptable evidence. No such evidence was forthcoming, perhaps, because the plaintiff had taken the stand that no inspection at all was carried out. Though the plaintiff tried to prove the said fact i.e. that no inspection took place through PW 1, the evidence of the said witness on the aforesaid score is wholly inconsistent. The reliance placed on the evidence of DW 1 in this regard is also somewhat misplaced in as much as DW 1 had clearly stated that he was a member of the joint inspection team which had carried out the inspection on 14.6.1991 and that the report of inspection prepared was refused to be signed by the plaintiff’s representative though he was present at the time of inspection. The mere inability of the DW 1 to specify the status of the plaintiff’s representative present at the site would not, in any way, affect the credibility of the fact that an inspection was, infact, carried out. It has also to be noticed that the specific denial with regard to the business of manufacture of PVC conduit pipes in the premises of the plaintiff had come only in the telegram dated 01.04.1992 sent by the advocate representing the plaintiff. In the absence of any clear stand to the above effect in the reply of the plaintiff dated 6.12.1991, the subsequent plea put forth in the telegram dated 01.04.1992 must be understood to be an after thought on the part of the plaintiff and the result of an attempt to improve its case through its counsel.12. To make the discussions complete we would also like to observe in the present case that plaintiff was given an option to remove the excess load failing which it was made clear it will be charged at the higher rate of tariff. We have also found that the bill for Rs.3,38.378.02 for the period 06.06.1991 to February 1992 was prepared and submitted for payment by the plaintiff in accordance with the terms and conditions of supply in force in the DESU and that the said bill was prepared after consideration of the stand taken by the plaintiff in its reply dated 06.01.1992. No infirmity or illegality is disclosed in any of the actions of the defendant infringing any known right of the plaintiff so as to entitle it to a decree of perpetual injunction as prayed for.
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It is from the aforesaid limited perspective that we had persuaded ourselves to go into the matter. On such consideration we find that the plaintiff in its reply dated 6.1.1992 submitted in response to the notices issued by the Defendant on 6.11.1991 and 3.12.1991 had only asserted that it is engaged in the manufacture and printing of calendars etc. and that it had not exceeded the sanctioned load. There is no positive stand taken with regard to the findings of the inspection as mentioned in the report dated 14.06.1991. Neither any evidence had been led by the plaintiff to establish that the machinery mentioned in the inspection note to have been found installed in its premises were not so installed or that such machinery was not used or utilized by the plaintiff for manufacture of PVC conduit pipes. It was incumbent on the part of the plaintiff, who had claimed in the suit that the report of inspection was incorrect, to prove the said facts by means of legally acceptable evidence. No such evidence was forthcoming, perhaps, because the plaintiff had taken the stand that no inspection at all was carried out. Though the plaintiff tried to prove the said fact i.e. that no inspection took place through PW 1, the evidence of the said witness on the aforesaid score is wholly inconsistent. The reliance placed on the evidence of DW 1 in this regard is also somewhat misplaced in as much as DW 1 had clearly stated that he was a member of the joint inspection team which had carried out the inspection on 14.6.1991 and that the report of inspection prepared was refused to be signed by therepresentative though he was present at the time of inspection. The mere inability of the DW 1 to specify the status of therepresentative present at the site would not, in any way, affect the credibility of the fact that an inspection was, infact, carried out. It has also to be noticed that the specific denial with regard to the business of manufacture of PVC conduit pipes in the premises of the plaintiff had come only in the telegram dated 01.04.1992 sent by the advocate representing the plaintiff. In the absence of any clear stand to the above effect in the reply of the plaintiff dated 6.12.1991, the subsequent plea put forth in the telegram dated 01.04.1992 must be understood to be an after thought on the part of the plaintiff and the result of an attempt to improve its case through its counsel.12. To make the discussions complete we would also like to observe in the present case that plaintiff was given an option to remove the excess load failing which it was made clear it will be charged at the higher rate of tariff. We have also found that the bill for Rs.3,38.378.02 for the period 06.06.1991 to February 1992 was prepared and submitted for payment by the plaintiff in accordance with the terms and conditions of supply in force in the DESU and that the said bill was prepared after consideration of the stand taken by the plaintiff in its reply dated 06.01.1992. No infirmity or illegality is disclosed in any of the actions of the defendant infringing any known right of the plaintiff so as to entitle it to a decree of perpetual injunction as prayed for.
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Tufail (Alias) Simmi Vs. State of Uttar Pradesh | Exhibit Ka-2, on September 21, 1966.8. Both the learned Sessions Judge, as well as the High Court on appeal, have accepted as true the evidence of the witnesses, referred to above, and have further held that the five circumstances, relied on by the prosecution, have been fully established. Taking all the circumstances together in conjunction with the denial of the accused, the High Court, in agreement with the learned Sessions Judge, has become to the conclusion that it is the appellant who murdered Kalawati, robbed her of her ornaments and disposed of her body by throwing it into the well.9. Mr. Nuruddin Ahmed, learned for the appellant, has urged two contentions : (i) that the finding regarding recovery of ornaments at the instance of the appellant, recorded by the learned Session Judge and the High Court, is perverse and that no reasonable person can come to that conclusion, on the evidence on record and (ii) that even if the recovery of ornaments at the instance of the appellant, is accepted as true, it does not lead to the conclusion that it is the appellant who committed the murder. We are satisfied that neither of these contentions can be accepted.10. The conviction of the appellant in this case is based upon circumstantial evidence and the High Court and the Sessions Judge have accepted as true the evidence of the witnesses who speak to the various circumstances relied on by the prosecution. When there are concurrent findings on facts, this Court does not, normally, taken upon itself the task of again reviewing the evidence; but, in view of the aback that the finding regarding recovery of ornaments is perverse, we have ourselves gone through to he evidence bearing on that aspect, and we are satisfied, notwithstanding certain minor discrepancies, that the evidence relating to the same is true and has been rightly accepted by the learned Sessions Judge and High Court.11. The production of ornaments by the appellant, after his arrest, and which ornaments have been identified as belonging to the deceased, is a very strong circumstance in the chain of circumstances relied on by the prosecution. The evidence relating to recovery of ornaments is furnished by the two police officers, P. Ws. 14 and 17 and the Panch witness P.W. 6. According to this evidence, the appellant was arrested on September 21, 1966 by P.W. 14 and the appellant agreed to produce the ornaments of Kalawati which he had kept in his house. The appellant took the place officers, P.W. 6 and one Bishamber Dayal to his house and, after opening the locked box which was in a room upstairs, he produced six gold bangles, four gold ear-rings, one gold ear-top and four silver lachchas. These articles have been identified by P. Ws. 1, 2 and 10 as belonging to the deceased. These witnesses have spoken to the fact that these ornaments were normally worn by Kalawati. Minor discrepancies in the evidence of the witnesses regarding the recovery of the ornaments have been adverted to by the High Court. Quite rightly, in the opinion, the High Court has taken the view that these discrepancies do not cast any doubt regarding the truth of the ornaments having been produced by the appellant after his arrest. Therefor we cannot accept the contention of Mr. Nuruddin Ahmed that the finding regarding the recovery of the ornaments at the instance of the appellant is perverse. On the other hand, we are satisfied that the said finding properly and legitimately followed from the acceptance of the evidence of the two police officers and P W. 6.12. No doubt, the mere recovery of the ornaments if it had stood by itself, without any other circumstance, may not lead to the one and only conclusion that it is the appellant who committed the murder. But the prosecution has relied on for other circumstances, referred to above, and those circumstances, taken along with the circumstance regarding the recovery of the ornaments in our opinion, lead to the conclusion that it was the appellant who has committed the murder of Kalawati.13. The mode of evaluating circumstantial evidence has been stated by this Court in Hanumant v. the State of Madhya Pradesh and is as follows :"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it just be such as to show that within all human probability the act must have been done by the accused."This principle has been reiterated by this Court in several later decisions.14. Applying the above principles, it is clear from the findings of the two Courts, that the circumstances from which the conclusion of guilt of the appellant is to be drawn have been fully established, and the chain of evidence accepted by both the Courts is also complete and does not leave any reasonable ground for a conclusion consistent with the innocence of the appellant. Kalawati was last seen in the company of the appellant in his Gher on the evening of September 19, 1966 and the appellant has also deliberately attempted to mislead the tenants of Kalawatis house by stating that she had gone to the village of Garthi along with Kripal. After his arrest, the production, by the appellant, of the ornaments worn by Kalawati is a vary clinching circumstance, which, taken along with the other circumstances, proves the complicity of the appellant in the murder of Kalawati. | 0[ds]We are satisfied that neither of these contentions can be accepted.10. The conviction of the appellant in this case is based upon circumstantial evidence and the High Court and the Sessions Judge have accepted as true the evidence of the witnesses who speak to the various circumstances relied on by the prosecution. When there are concurrent findings on facts, this Court does not, normally, taken upon itself the task of again reviewing the evidence; but, in view of the aback that the finding regarding recovery of ornaments is perverse, we have ourselves gone through to he evidence bearing on that aspect, and we are satisfied, notwithstanding certain minor discrepancies, that the evidence relating to the same is true and has been rightly accepted by the learned Sessions Judge and High Court.11. The production of ornaments by the appellant, after his arrest, and which ornaments have been identified as belonging to the deceased, is a very strong circumstance in the chain of circumstances relied on by the prosecution. The evidence relating to recovery of ornaments is furnished by the two police officers, P. Ws. 14 and 17 and the Panch witness P.W. 6. According to this evidence, the appellant was arrested on September 21, 1966 by P.W. 14 and the appellant agreed to produce the ornaments of Kalawati which he had kept in his house. The appellant took the place officers, P.W. 6 and one Bishamber Dayal to his house and, after opening the locked box which was in a room upstairs, he produced six gold bangles, four goldtop and four silver lachchas. These articles have been identified by P. Ws. 1, 2 and 10 as belonging to the deceased. These witnesses have spoken to the fact that these ornaments were normally worn by Kalawati. Minor discrepancies in the evidence of the witnesses regarding the recovery of the ornaments have been adverted to by the High Court. Quite rightly, in the opinion, the High Court has taken the view that these discrepancies do not cast any doubt regarding the truth of the ornaments having been produced by the appellant after his arrest. Therefor we cannot accept the contention of Mr. Nuruddin Ahmed that the finding regarding the recovery of the ornaments at the instance of the appellant is perverse. On the other hand, we are satisfied that the said finding properly and legitimately followed from the acceptance of the evidence of the two police officers and P W. 6.12. No doubt, the mere recovery of the ornaments if it had stood by itself, without any other circumstance, may not lead to the one and only conclusion that it is the appellant who committed the murder. But the prosecution has relied on for other circumstances, referred to above, and those circumstances, taken along with the circumstance regarding the recovery of the ornaments in our opinion, lead to the conclusion that it was the appellant who has committed the murder of Kalawati.Applying the above principles, it is clear from the findings of the two Courts, that the circumstances from which the conclusion of guilt of the appellant is to be drawn have been fully established, and the chain of evidence accepted by both the Courts is also complete and does not leave any reasonable ground for a conclusion consistent with the innocence of the appellant. Kalawati was last seen in the company of the appellant in his Gher on the evening of September 19, 1966 and the appellant has also deliberately attempted to mislead the tenants of Kalawatis house by stating that she had gone to the village of Garthi along with Kripal. After his arrest, the production, by the appellant, of the ornaments worn by Kalawati is a vary clinching circumstance, which, taken along with the other circumstances, proves the complicity of the appellant in the murder of Kalawati. | 0 | 2,226 | 704 | ### 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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Exhibit Ka-2, on September 21, 1966.8. Both the learned Sessions Judge, as well as the High Court on appeal, have accepted as true the evidence of the witnesses, referred to above, and have further held that the five circumstances, relied on by the prosecution, have been fully established. Taking all the circumstances together in conjunction with the denial of the accused, the High Court, in agreement with the learned Sessions Judge, has become to the conclusion that it is the appellant who murdered Kalawati, robbed her of her ornaments and disposed of her body by throwing it into the well.9. Mr. Nuruddin Ahmed, learned for the appellant, has urged two contentions : (i) that the finding regarding recovery of ornaments at the instance of the appellant, recorded by the learned Session Judge and the High Court, is perverse and that no reasonable person can come to that conclusion, on the evidence on record and (ii) that even if the recovery of ornaments at the instance of the appellant, is accepted as true, it does not lead to the conclusion that it is the appellant who committed the murder. We are satisfied that neither of these contentions can be accepted.10. The conviction of the appellant in this case is based upon circumstantial evidence and the High Court and the Sessions Judge have accepted as true the evidence of the witnesses who speak to the various circumstances relied on by the prosecution. When there are concurrent findings on facts, this Court does not, normally, taken upon itself the task of again reviewing the evidence; but, in view of the aback that the finding regarding recovery of ornaments is perverse, we have ourselves gone through to he evidence bearing on that aspect, and we are satisfied, notwithstanding certain minor discrepancies, that the evidence relating to the same is true and has been rightly accepted by the learned Sessions Judge and High Court.11. The production of ornaments by the appellant, after his arrest, and which ornaments have been identified as belonging to the deceased, is a very strong circumstance in the chain of circumstances relied on by the prosecution. The evidence relating to recovery of ornaments is furnished by the two police officers, P. Ws. 14 and 17 and the Panch witness P.W. 6. According to this evidence, the appellant was arrested on September 21, 1966 by P.W. 14 and the appellant agreed to produce the ornaments of Kalawati which he had kept in his house. The appellant took the place officers, P.W. 6 and one Bishamber Dayal to his house and, after opening the locked box which was in a room upstairs, he produced six gold bangles, four gold ear-rings, one gold ear-top and four silver lachchas. These articles have been identified by P. Ws. 1, 2 and 10 as belonging to the deceased. These witnesses have spoken to the fact that these ornaments were normally worn by Kalawati. Minor discrepancies in the evidence of the witnesses regarding the recovery of the ornaments have been adverted to by the High Court. Quite rightly, in the opinion, the High Court has taken the view that these discrepancies do not cast any doubt regarding the truth of the ornaments having been produced by the appellant after his arrest. Therefor we cannot accept the contention of Mr. Nuruddin Ahmed that the finding regarding the recovery of the ornaments at the instance of the appellant is perverse. On the other hand, we are satisfied that the said finding properly and legitimately followed from the acceptance of the evidence of the two police officers and P W. 6.12. No doubt, the mere recovery of the ornaments if it had stood by itself, without any other circumstance, may not lead to the one and only conclusion that it is the appellant who committed the murder. But the prosecution has relied on for other circumstances, referred to above, and those circumstances, taken along with the circumstance regarding the recovery of the ornaments in our opinion, lead to the conclusion that it was the appellant who has committed the murder of Kalawati.13. The mode of evaluating circumstantial evidence has been stated by this Court in Hanumant v. the State of Madhya Pradesh and is as follows :"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it just be such as to show that within all human probability the act must have been done by the accused."This principle has been reiterated by this Court in several later decisions.14. Applying the above principles, it is clear from the findings of the two Courts, that the circumstances from which the conclusion of guilt of the appellant is to be drawn have been fully established, and the chain of evidence accepted by both the Courts is also complete and does not leave any reasonable ground for a conclusion consistent with the innocence of the appellant. Kalawati was last seen in the company of the appellant in his Gher on the evening of September 19, 1966 and the appellant has also deliberately attempted to mislead the tenants of Kalawatis house by stating that she had gone to the village of Garthi along with Kripal. After his arrest, the production, by the appellant, of the ornaments worn by Kalawati is a vary clinching circumstance, which, taken along with the other circumstances, proves the complicity of the appellant in the murder of Kalawati.
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We are satisfied that neither of these contentions can be accepted.10. The conviction of the appellant in this case is based upon circumstantial evidence and the High Court and the Sessions Judge have accepted as true the evidence of the witnesses who speak to the various circumstances relied on by the prosecution. When there are concurrent findings on facts, this Court does not, normally, taken upon itself the task of again reviewing the evidence; but, in view of the aback that the finding regarding recovery of ornaments is perverse, we have ourselves gone through to he evidence bearing on that aspect, and we are satisfied, notwithstanding certain minor discrepancies, that the evidence relating to the same is true and has been rightly accepted by the learned Sessions Judge and High Court.11. The production of ornaments by the appellant, after his arrest, and which ornaments have been identified as belonging to the deceased, is a very strong circumstance in the chain of circumstances relied on by the prosecution. The evidence relating to recovery of ornaments is furnished by the two police officers, P. Ws. 14 and 17 and the Panch witness P.W. 6. According to this evidence, the appellant was arrested on September 21, 1966 by P.W. 14 and the appellant agreed to produce the ornaments of Kalawati which he had kept in his house. The appellant took the place officers, P.W. 6 and one Bishamber Dayal to his house and, after opening the locked box which was in a room upstairs, he produced six gold bangles, four goldtop and four silver lachchas. These articles have been identified by P. Ws. 1, 2 and 10 as belonging to the deceased. These witnesses have spoken to the fact that these ornaments were normally worn by Kalawati. Minor discrepancies in the evidence of the witnesses regarding the recovery of the ornaments have been adverted to by the High Court. Quite rightly, in the opinion, the High Court has taken the view that these discrepancies do not cast any doubt regarding the truth of the ornaments having been produced by the appellant after his arrest. Therefor we cannot accept the contention of Mr. Nuruddin Ahmed that the finding regarding the recovery of the ornaments at the instance of the appellant is perverse. On the other hand, we are satisfied that the said finding properly and legitimately followed from the acceptance of the evidence of the two police officers and P W. 6.12. No doubt, the mere recovery of the ornaments if it had stood by itself, without any other circumstance, may not lead to the one and only conclusion that it is the appellant who committed the murder. But the prosecution has relied on for other circumstances, referred to above, and those circumstances, taken along with the circumstance regarding the recovery of the ornaments in our opinion, lead to the conclusion that it was the appellant who has committed the murder of Kalawati.Applying the above principles, it is clear from the findings of the two Courts, that the circumstances from which the conclusion of guilt of the appellant is to be drawn have been fully established, and the chain of evidence accepted by both the Courts is also complete and does not leave any reasonable ground for a conclusion consistent with the innocence of the appellant. Kalawati was last seen in the company of the appellant in his Gher on the evening of September 19, 1966 and the appellant has also deliberately attempted to mislead the tenants of Kalawatis house by stating that she had gone to the village of Garthi along with Kripal. After his arrest, the production, by the appellant, of the ornaments worn by Kalawati is a vary clinching circumstance, which, taken along with the other circumstances, proves the complicity of the appellant in the murder of Kalawati.
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Prakash & Another Vs. State of Madhya Pradesh | favour because they were entitled to benefit of doubt. Even in the case of Shiv Narayan, the High Court has not accepted the prosecution case that Shiv Narayan had himself inflicted knife injuries on the deceased, although Shiv Narayan was found to have taken very active part in the matter of inflicting injuries on the person of the deceased. The High Court on a dispassionate analysis of the case came to the finding that the common intention to cause the death of the deceased could not be convincingly attributed to the accused, Shiv Narayan in the absence of sufficient material to prove otherwise particularly when no blood stain was found on the knife found at the spot. Since he was also armed with knife and was party to attack on the deceased, the High Court has taken a very lenient view in convicting the accused Shiv Narayan not under section 302, IPC but under section 326 read with S. 34, IPC and even in the matter of awarding the sentence, the High Court -has taken a very lenient view in so far as Shiv Narayan is concerned. The learned counsel for the State has contended that dying declaration should not have been discarded by the learned Addl. Judge. There is no evidence to warrant the finding that the deceased was not in a position to make a dying declaration. The learned counsel has contended that the deceased was alive at least for 30 to 45 minutes after the incident and the doctor who had treated the deceased in the hospital and had held post mortem did not state that it was not possible for the deceased to make a dying declaration. The learned counsel has also submitted that the reasons given by the High Court are so convincing that no other view is warranted. He has submitted that there is no occasion for interfering with that judgment passed by the High Court and appeals should be dismissed. 11. After giving our anxious consideration to the facts and circumstances of the case and the arguments advanced by the counsel for the parties and judgment delivered both by the Additional Sessions Judge and the High-Court of Madhya Pradesh, it appears to us that the fatal injuries had been inflicted by Prakash with the gupti. The gupti was recovered at the instance of the accused and such recovery was not otherwise possible if the accused himself had not assisted for such recovery of the gupti. The said gupti was stained with human blood and no reasonable explanation has been given by accused for such blood stain. The injuries found on the person of the deceased could be inflicted by a gupti and complicity of Prakash in inflicting the fatal injuries by gupti has been corroborated by the eye-witness. There may be some minor discrepancies in the evidence of the eye-witness but so far as the complicity of Prakash is concerned, the depositions of the eye-witnesses were consistent. In discarding the evidence of the brother of the deceased namely Ajay Singh the learned Additional Sessions Judge was influenced by the tender age of Ajay (about 14 years) and was of the view that he was likely to be tutored. We do not think that a boy of about 14 years of age cannot give a proper account of the murder of his brother if he has an occasion to witness the same and simply because the witness was a boy of 14 years it will not be proper to assume that he is likely to be tutored. The High Court has given very convincing reasons for accepting the evidence of Ajay Singh as an eye witness of the murderous act and we do not find any infirmity in the finding made by the High Court. In so far as the dying declaration is concerned, we are inclined to accept the finding of the High Court that the deceased was alive at least up to half an hour after the assault. He had been taken to the hospital where he received some treatment for about 10-15 minutes. It is not borne out from the evidence of the doctor that the injuries were so grave and the condition of the patient was so critical that it was unlikely that he could make any dying declaration. In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobodys case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with. As a matter of fact, on second thought, the learned Additional Sessions Judge has accepted the dying declaration and has convicted Prakash on the basis of dying declaration. The injuries inflicted by Prakash were very serious on vital parts of the body causing death of the deceased within a very short time. In such circumstances, conviction under Section 502, IPC and sentence of life imprisonment of the accused Prakash is justified and no interference is called for. In our view. the High Court has taken a very reasonable view in convicting the other accused namely Shiv Narayan under Section 326 read with Section 34, IPC and has considered his case with such sympathy as the. said accused deserved by sentencing him for imprisonment for the period already undergone by him, for an offence under Section 326 read with Section 34, IPC. | 0[ds]11. After giving our anxious consideration to the facts and circumstances of the case and the arguments advanced by the counsel for the parties and judgment delivered both by the Additional Sessions Judge and theof Madhya Pradesh, it appears to us that the fatal injuries had been inflicted by Prakash with the gupti. The gupti was recovered at the instance of the accused and such recovery was not otherwise possible if the accused himself had not assisted for such recovery of the gupti. The said gupti was stained with human blood and no reasonable explanation has been given by accused for such blood stain. The injuries found on the person of the deceased could be inflicted by a gupti and complicity of Prakash in inflicting the fatal injuries by gupti has been corroborated by theThere may be some minor discrepancies in the evidence of thebut so far as the complicity of Prakash is concerned, the depositions of thewere consistent. In discarding the evidence of the brother of the deceased namely Ajay Singh the learned Additional Sessions Judge was influenced by the tender age of Ajay (about 14 years) and was of the view that he was likely to be tutored. We do not think that a boy of about 14 years of age cannot give a proper account of the murder of his brother if he has an occasion to witness the same and simply because the witness was a boy of 14 years it will not be proper to assume that he is likely to be tutored. The High Court has given very convincing reasons for accepting the evidence of Ajay Singh as an eye witness of the murderous act and we do not find any infirmity in the finding made by the High Court. In so far as the dying declaration is concerned, we are inclined to accept the finding of the High Court that the deceased was alive at least up to half an hour after the assault. He had been taken to the hospital where he received some treatment for aboutminutes. It is not borne out from the evidence of the doctor that the injuries were so grave and the condition of the patient was so critical that it was unlikely that he could make any dying declaration. In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobodys case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with. As a matter of fact, on second thought, the learned Additional Sessions Judge has accepted the dying declaration and has convicted Prakash on the basis of dying declaration. The injuries inflicted by Prakash were very serious on vital parts of the body causing death of the deceased within a very short time. In such circumstances, conviction under Section 502, IPC and sentence of life imprisonment of the accused Prakash is justified and no interference is called for. In our view. the High Court has taken a very reasonable view in convicting the other accused namely Shiv Narayan under Section 326 read with Section 34, IPC and has considered his case with such sympathy as the. said accused deserved by sentencing him for imprisonment for the period already undergone by him, for an offence under Section 326 read with Section 34, IPC. | 0 | 4,279 | 703 | ### 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:
favour because they were entitled to benefit of doubt. Even in the case of Shiv Narayan, the High Court has not accepted the prosecution case that Shiv Narayan had himself inflicted knife injuries on the deceased, although Shiv Narayan was found to have taken very active part in the matter of inflicting injuries on the person of the deceased. The High Court on a dispassionate analysis of the case came to the finding that the common intention to cause the death of the deceased could not be convincingly attributed to the accused, Shiv Narayan in the absence of sufficient material to prove otherwise particularly when no blood stain was found on the knife found at the spot. Since he was also armed with knife and was party to attack on the deceased, the High Court has taken a very lenient view in convicting the accused Shiv Narayan not under section 302, IPC but under section 326 read with S. 34, IPC and even in the matter of awarding the sentence, the High Court -has taken a very lenient view in so far as Shiv Narayan is concerned. The learned counsel for the State has contended that dying declaration should not have been discarded by the learned Addl. Judge. There is no evidence to warrant the finding that the deceased was not in a position to make a dying declaration. The learned counsel has contended that the deceased was alive at least for 30 to 45 minutes after the incident and the doctor who had treated the deceased in the hospital and had held post mortem did not state that it was not possible for the deceased to make a dying declaration. The learned counsel has also submitted that the reasons given by the High Court are so convincing that no other view is warranted. He has submitted that there is no occasion for interfering with that judgment passed by the High Court and appeals should be dismissed. 11. After giving our anxious consideration to the facts and circumstances of the case and the arguments advanced by the counsel for the parties and judgment delivered both by the Additional Sessions Judge and the High-Court of Madhya Pradesh, it appears to us that the fatal injuries had been inflicted by Prakash with the gupti. The gupti was recovered at the instance of the accused and such recovery was not otherwise possible if the accused himself had not assisted for such recovery of the gupti. The said gupti was stained with human blood and no reasonable explanation has been given by accused for such blood stain. The injuries found on the person of the deceased could be inflicted by a gupti and complicity of Prakash in inflicting the fatal injuries by gupti has been corroborated by the eye-witness. There may be some minor discrepancies in the evidence of the eye-witness but so far as the complicity of Prakash is concerned, the depositions of the eye-witnesses were consistent. In discarding the evidence of the brother of the deceased namely Ajay Singh the learned Additional Sessions Judge was influenced by the tender age of Ajay (about 14 years) and was of the view that he was likely to be tutored. We do not think that a boy of about 14 years of age cannot give a proper account of the murder of his brother if he has an occasion to witness the same and simply because the witness was a boy of 14 years it will not be proper to assume that he is likely to be tutored. The High Court has given very convincing reasons for accepting the evidence of Ajay Singh as an eye witness of the murderous act and we do not find any infirmity in the finding made by the High Court. In so far as the dying declaration is concerned, we are inclined to accept the finding of the High Court that the deceased was alive at least up to half an hour after the assault. He had been taken to the hospital where he received some treatment for about 10-15 minutes. It is not borne out from the evidence of the doctor that the injuries were so grave and the condition of the patient was so critical that it was unlikely that he could make any dying declaration. In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobodys case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with. As a matter of fact, on second thought, the learned Additional Sessions Judge has accepted the dying declaration and has convicted Prakash on the basis of dying declaration. The injuries inflicted by Prakash were very serious on vital parts of the body causing death of the deceased within a very short time. In such circumstances, conviction under Section 502, IPC and sentence of life imprisonment of the accused Prakash is justified and no interference is called for. In our view. the High Court has taken a very reasonable view in convicting the other accused namely Shiv Narayan under Section 326 read with Section 34, IPC and has considered his case with such sympathy as the. said accused deserved by sentencing him for imprisonment for the period already undergone by him, for an offence under Section 326 read with Section 34, IPC.
### Response:
0
### Explanation:
11. After giving our anxious consideration to the facts and circumstances of the case and the arguments advanced by the counsel for the parties and judgment delivered both by the Additional Sessions Judge and theof Madhya Pradesh, it appears to us that the fatal injuries had been inflicted by Prakash with the gupti. The gupti was recovered at the instance of the accused and such recovery was not otherwise possible if the accused himself had not assisted for such recovery of the gupti. The said gupti was stained with human blood and no reasonable explanation has been given by accused for such blood stain. The injuries found on the person of the deceased could be inflicted by a gupti and complicity of Prakash in inflicting the fatal injuries by gupti has been corroborated by theThere may be some minor discrepancies in the evidence of thebut so far as the complicity of Prakash is concerned, the depositions of thewere consistent. In discarding the evidence of the brother of the deceased namely Ajay Singh the learned Additional Sessions Judge was influenced by the tender age of Ajay (about 14 years) and was of the view that he was likely to be tutored. We do not think that a boy of about 14 years of age cannot give a proper account of the murder of his brother if he has an occasion to witness the same and simply because the witness was a boy of 14 years it will not be proper to assume that he is likely to be tutored. The High Court has given very convincing reasons for accepting the evidence of Ajay Singh as an eye witness of the murderous act and we do not find any infirmity in the finding made by the High Court. In so far as the dying declaration is concerned, we are inclined to accept the finding of the High Court that the deceased was alive at least up to half an hour after the assault. He had been taken to the hospital where he received some treatment for aboutminutes. It is not borne out from the evidence of the doctor that the injuries were so grave and the condition of the patient was so critical that it was unlikely that he could make any dying declaration. In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobodys case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with. As a matter of fact, on second thought, the learned Additional Sessions Judge has accepted the dying declaration and has convicted Prakash on the basis of dying declaration. The injuries inflicted by Prakash were very serious on vital parts of the body causing death of the deceased within a very short time. In such circumstances, conviction under Section 502, IPC and sentence of life imprisonment of the accused Prakash is justified and no interference is called for. In our view. the High Court has taken a very reasonable view in convicting the other accused namely Shiv Narayan under Section 326 read with Section 34, IPC and has considered his case with such sympathy as the. said accused deserved by sentencing him for imprisonment for the period already undergone by him, for an offence under Section 326 read with Section 34, IPC.
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Collector of Central Excise Vs. Fusebase Eltoto Limited | contains the following entry at Serial No. 10: ---- "10. 85.28 (i) television sets in combination Twenty-five per cent with, video recording or ad valorem reproducing apparatus. (ii) Video monitors and Video Twenty five per cent ad valorem" projectors. ------5. The claim of respondent for grant of exemption under Notification No. 68/86 was rejected by the Assistant Collector and the Appellate Collector on the ground that the respondent was manufacturing "Video projectors"and as such they were liable to pay central excise duty in terms of the Notification No. 160/86. In substance the Departments case was that the goods manufactured by the respondent did not come within the category known as "broadcast television receiver sets". 6. According to the Assistant Collector inbuilt technology of the projector television receiver set is different than that of a broadcast television receiver set. It was highlighted that the projection set has three cathode rays tubes whereas the ordinary set consists of only one such tube. The cathode-rays tubes used in both types of sets are entirely different in their shape, size and function. The Assistant Collector primarily decided against the respondent-company on the ground that the projection television set is not known as broadcast television receiver set in common parlance of the trade. He accepted the contention of the respondent that the projection television is a television receiver in the sense that it receives the video signals and the images of distant events and objects but he rejected the contentions of the respondents on the following reasoning :- "But its function is not confined to receiving the images and making them visible on the receiver set itself. It extends to their projection outside the receiver set. A careful (as against a projector set) is entitled for concessional rate of duty within the ambit of its meaning. There should, therefore, be no doubt that a television set which functions both as receiver and projector is not covered by the notification No. 68/86 as Amended. I find that the distinguishing feature between a television receiver set and the so called projection (being manufactured by M/s. Fusebase and which is the subject matter of present dispute) outlined in the show cause notice relate to facts which have not been disputed by the party. It is beyond dispute that both in terms of function and configuration the so called projection TV is different from TV as understood in common parlance of trade. It is settled law that for the purpose of levy of Central excise Duty, the most important consideration/ factor is how it is known in market and society. Both in terms of price as also in terms of its response to the market/society, the so called projection TV is not considered and known as a television. In so far as this product (projection TV) projects the images received by it on a medium/screen outside- about which there is no doubt and dispute - It is appropriate to call it a Video projectors." * 7. The Collector (Appeals) upheld the above quoted findings of the Assistant Collector. The Tribunal did not touch the question as to how the products called "broadcast television receiver set" is identified by the class or section of people dealing with or using the product. That is the test to be followed when the relevant notifications do not contain any definition of the products. The identity of an article is associated with its primary function and utility. The names of certain products have functional association in the mind of the consumers. There is a mental association in the mind of the consumer in respect of certain products keeping in view the utility of the product and also the reputation the name of the product has acquired in the market and among the consumers. "Broadcast television receiver sets" and the "projections television sets"are two entirely different products and the consumers in this country, as at present, do not identify these two as one and the same product. When you go to the market to buy a television set you mean the conventional Broadcast Television Receiver set and the dealer will never understand you to mean the Hotline Projector Vision 203 etc. 8. We agree with the contention of the learned counsel for the respondent that the Projector Vision - Projection television sets capable of receiving television broadcasts as is being done by any other broadcast television receiver set but at the same time the two are not the same. An ordinary television set has a fixed image in the mind of the consumer in this country. One never visualises a television set having a projection- unit and a head- screen mounted at a long distance. A television set - in the imagination of the consumer - is a compact set with inbuilt screen which adores the drawing room and bed room. A television set in the market costs about Rs. 15, 000/- to Rs. 25, 000/- whereas the respondents product costs between Rs. 1, 20, 000/- to Rs. 1, 50, 000/-. We, therefore, agree with the view taken by the Assistant Collector and the Collector.9. We, further, agree with the Assistant Collector that the product of the respondent fully answers the description of "Video Projectors" in terms of the Notification No. 160/86 It is not disputed, rather it is the case of the respondent that the "projection television set" manufactured by them receives the televised image. Video is the transmission and reception of a televised image. In other words, it is a television image or the electric signals corresponding to it. It pertains to the picture portion of the televised programme. Projector is a devise for projecting a light beam, an apparatus for throwing illuminated images or motion pictures on the screen. The product of the respondent-company projects on a screen the video signals transmitted from the television station and received by it. The Assistant Collector has, thus, rightly reached the conclusion that the product of the respondent answers the description of a `video projector. | 1[ds]7. The Collector (Appeals) upheld the above quoted findings of the Assistant Collector. The Tribunal did not touch the question as to how the products called "broadcast television receiver set" is identified by the class or section of people dealing with or using the product. That is the test to be followed when the relevant notifications do not contain any definition of the products. The identity of an article is associated with its primary function and utility. The names of certain products have functional association in the mind of the consumers. There is a mental association in the mind of the consumer in respect of certain products keeping in view the utility of the product and also the reputation the name of the product has acquired in the market and among the consumers. "Broadcast television receiver sets" and the "projections television sets"are two entirely different products and the consumers in this country, as at present, do not identify these two as one and the same product. When you go to the market to buy a television set you mean the conventional Broadcast Television Receiver set and the dealer will never understand you to mean the Hotline Projector Vision 203 etc. 8. We agree with the contention of the learned counsel for the respondent that the Projector VisionProjection television sets capable of receiving television broadcasts as is being done by any other broadcast television receiver set but at the same time the two are not the same. An ordinary television set has a fixed image in the mind of the consumer in this country. One never visualises a television set having a projectionunit and a headscreen mounted at a long distance. A television setin the imagination of the consumeris a compact set with inbuilt screen which adores the drawing room and bed room. A television set in the market costs about Rs. 15, 000/to Rs. 25, 000/whereas the respondents product costs between Rs. 1, 20, 000/to Rs. 1, 50,We, therefore, agree with the view taken by the Assistant Collector and the Collector.9. We, further, agree with the Assistant Collector that the product of the respondent fully answers the description of "Video Projectors" in terms of the Notification No. 160/86 It is not disputed, rather it is the case of the respondent that the "projection television set" manufactured by them receives the televised image. Video is the transmission and reception of a televised image. In other words, it is a television image or the electric signals corresponding to it. It pertains to the picture portion of the televised programme. Projector is a devise for projecting a light beam, an apparatus for throwing illuminated images or motion pictures on the screen. The product of theprojects on a screen the video signals transmitted from the television station and received by it. The Assistant Collector has, thus, rightly reached the conclusion that the product of the respondent answers the description of a `video projector. | 1 | 1,551 | 552 | ### 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:
contains the following entry at Serial No. 10: ---- "10. 85.28 (i) television sets in combination Twenty-five per cent with, video recording or ad valorem reproducing apparatus. (ii) Video monitors and Video Twenty five per cent ad valorem" projectors. ------5. The claim of respondent for grant of exemption under Notification No. 68/86 was rejected by the Assistant Collector and the Appellate Collector on the ground that the respondent was manufacturing "Video projectors"and as such they were liable to pay central excise duty in terms of the Notification No. 160/86. In substance the Departments case was that the goods manufactured by the respondent did not come within the category known as "broadcast television receiver sets". 6. According to the Assistant Collector inbuilt technology of the projector television receiver set is different than that of a broadcast television receiver set. It was highlighted that the projection set has three cathode rays tubes whereas the ordinary set consists of only one such tube. The cathode-rays tubes used in both types of sets are entirely different in their shape, size and function. The Assistant Collector primarily decided against the respondent-company on the ground that the projection television set is not known as broadcast television receiver set in common parlance of the trade. He accepted the contention of the respondent that the projection television is a television receiver in the sense that it receives the video signals and the images of distant events and objects but he rejected the contentions of the respondents on the following reasoning :- "But its function is not confined to receiving the images and making them visible on the receiver set itself. It extends to their projection outside the receiver set. A careful (as against a projector set) is entitled for concessional rate of duty within the ambit of its meaning. There should, therefore, be no doubt that a television set which functions both as receiver and projector is not covered by the notification No. 68/86 as Amended. I find that the distinguishing feature between a television receiver set and the so called projection (being manufactured by M/s. Fusebase and which is the subject matter of present dispute) outlined in the show cause notice relate to facts which have not been disputed by the party. It is beyond dispute that both in terms of function and configuration the so called projection TV is different from TV as understood in common parlance of trade. It is settled law that for the purpose of levy of Central excise Duty, the most important consideration/ factor is how it is known in market and society. Both in terms of price as also in terms of its response to the market/society, the so called projection TV is not considered and known as a television. In so far as this product (projection TV) projects the images received by it on a medium/screen outside- about which there is no doubt and dispute - It is appropriate to call it a Video projectors." * 7. The Collector (Appeals) upheld the above quoted findings of the Assistant Collector. The Tribunal did not touch the question as to how the products called "broadcast television receiver set" is identified by the class or section of people dealing with or using the product. That is the test to be followed when the relevant notifications do not contain any definition of the products. The identity of an article is associated with its primary function and utility. The names of certain products have functional association in the mind of the consumers. There is a mental association in the mind of the consumer in respect of certain products keeping in view the utility of the product and also the reputation the name of the product has acquired in the market and among the consumers. "Broadcast television receiver sets" and the "projections television sets"are two entirely different products and the consumers in this country, as at present, do not identify these two as one and the same product. When you go to the market to buy a television set you mean the conventional Broadcast Television Receiver set and the dealer will never understand you to mean the Hotline Projector Vision 203 etc. 8. We agree with the contention of the learned counsel for the respondent that the Projector Vision - Projection television sets capable of receiving television broadcasts as is being done by any other broadcast television receiver set but at the same time the two are not the same. An ordinary television set has a fixed image in the mind of the consumer in this country. One never visualises a television set having a projection- unit and a head- screen mounted at a long distance. A television set - in the imagination of the consumer - is a compact set with inbuilt screen which adores the drawing room and bed room. A television set in the market costs about Rs. 15, 000/- to Rs. 25, 000/- whereas the respondents product costs between Rs. 1, 20, 000/- to Rs. 1, 50, 000/-. We, therefore, agree with the view taken by the Assistant Collector and the Collector.9. We, further, agree with the Assistant Collector that the product of the respondent fully answers the description of "Video Projectors" in terms of the Notification No. 160/86 It is not disputed, rather it is the case of the respondent that the "projection television set" manufactured by them receives the televised image. Video is the transmission and reception of a televised image. In other words, it is a television image or the electric signals corresponding to it. It pertains to the picture portion of the televised programme. Projector is a devise for projecting a light beam, an apparatus for throwing illuminated images or motion pictures on the screen. The product of the respondent-company projects on a screen the video signals transmitted from the television station and received by it. The Assistant Collector has, thus, rightly reached the conclusion that the product of the respondent answers the description of a `video projector.
### Response:
1
### Explanation:
7. The Collector (Appeals) upheld the above quoted findings of the Assistant Collector. The Tribunal did not touch the question as to how the products called "broadcast television receiver set" is identified by the class or section of people dealing with or using the product. That is the test to be followed when the relevant notifications do not contain any definition of the products. The identity of an article is associated with its primary function and utility. The names of certain products have functional association in the mind of the consumers. There is a mental association in the mind of the consumer in respect of certain products keeping in view the utility of the product and also the reputation the name of the product has acquired in the market and among the consumers. "Broadcast television receiver sets" and the "projections television sets"are two entirely different products and the consumers in this country, as at present, do not identify these two as one and the same product. When you go to the market to buy a television set you mean the conventional Broadcast Television Receiver set and the dealer will never understand you to mean the Hotline Projector Vision 203 etc. 8. We agree with the contention of the learned counsel for the respondent that the Projector VisionProjection television sets capable of receiving television broadcasts as is being done by any other broadcast television receiver set but at the same time the two are not the same. An ordinary television set has a fixed image in the mind of the consumer in this country. One never visualises a television set having a projectionunit and a headscreen mounted at a long distance. A television setin the imagination of the consumeris a compact set with inbuilt screen which adores the drawing room and bed room. A television set in the market costs about Rs. 15, 000/to Rs. 25, 000/whereas the respondents product costs between Rs. 1, 20, 000/to Rs. 1, 50,We, therefore, agree with the view taken by the Assistant Collector and the Collector.9. We, further, agree with the Assistant Collector that the product of the respondent fully answers the description of "Video Projectors" in terms of the Notification No. 160/86 It is not disputed, rather it is the case of the respondent that the "projection television set" manufactured by them receives the televised image. Video is the transmission and reception of a televised image. In other words, it is a television image or the electric signals corresponding to it. It pertains to the picture portion of the televised programme. Projector is a devise for projecting a light beam, an apparatus for throwing illuminated images or motion pictures on the screen. The product of theprojects on a screen the video signals transmitted from the television station and received by it. The Assistant Collector has, thus, rightly reached the conclusion that the product of the respondent answers the description of a `video projector.
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Hindustan Lever Ltd Vs. S.M. Jadhav | was a settlement between the management of M/s. Brooke Bond Lipton India Limited and the All India Brooke Bond Employees Federation. By this it was, inter alia, agreed that the age of the employees would be decided on the basis of the birth certificate and school or university certificate. It was agreed that in future no fresh cases would be brought up for consideration about the date of birth of an employee. The 1st respondent raised no dispute in respect of his date of birth at this time. 4. As the 1st respondents date of birth was 12th of June, 1927 he was to retire, as per the Company rules, on 1st of April, 1987 M/s. Brooke Bond Lipton India Limited sent a notice dated 11th November, 1986 intimating 1st respondent that he was due to retire on 1st of April, 1987. They enquired whether he wished to encash his leave. In reply to this, the 1st respondent by his Advocates letter dated 14th November, 1986, for the first time raised a contention that his date of birth was 29th August, 1930 and not 12th June, 1927. The 1st respondent claimed that the date of birth in the SSC Certificate had been corrected and that the corrected date had been informed to the Company in the year 1953 itself. At this stage to be noted that in the Advocates letter it is not claimed that a written intimation had been given to the Company. M/s. Brooke Bond Lipton India Limited point out that the date of birth in the Provident Fund Booklet and the Service record is 12th June, 1927. They reiterate that the 1st respondent would be retiring on 1st April, 1987. 5. The 1st respondent then filed a suit in the Court of the III Additional Munsiff, Belgaum praying for a declaration that his date of birth be corrected. In this suit he applied for an interim injunction. The trial Court by a detailed and reasoned order refused interim injunction. In so refusing the trial Court, inter alia, observed as follows :- "It is the say of the plaintiff that in the year 1953 itself this was informed to the defendant company for due correction in his service records. No documents have been produced by the plaintiff do not disclose the fact that such an information was given to the defendant-Company, if really such an information was given, the plaintiff ought to have followed it up with some enquiry etc., in this connection. Noting is before the Court to show that any correspondence was done with the defendant-Company in this regard." >6. On 1st of April, 1987, the 1st respondent retired and accepted his retiral benefits and dues. Thereafter on 2nd of June, 1987, the 1st respondent raised an industrial dispute claiming that his correct date of birth was 29th of August, 1930. The Industrial Tribunal by its award dated 4th October, 1993 allowed the claim of the 1st respondent. The Industrial Tribunal directed M/s. Brooke Bond Lipton India Limited to pay full back wages for 3 years along with consequential benefits to the 1st respondent. 7. The appellant filed a Writ Petition in the High Court of Karnataka. The writ petition was allowed by a Single Judge on 13th June, 1996. The Single Judge noted that the material on record was sufficient to show that the 1st respondents date of birth in the records was 12th June, 1927 and that only at the fag end of his career he could not be allowed to raise a dispute regarding his date of birth. 8. The 1st respondent filed a writ appeal which has been allowed by a Division Bench by the impugned order dated 24th June, 1998. The appellant have thus filed this appeal. 9. We have heard the parties. It is settled law that at the fag end of career, a party cannot be allowed to raise a dispute regarding his date of birth. The case of the 1st respondent that he had intimated the Company in 1953 itself is not believable. In the application, which had been filed by the 1st respondent he himself had given his date of birth as 12th of June, 1927 and also mentioned that his age as 25 years. On the basis of this application and the Matriculation Certificate the Manager had issued a certificate. Thereafter his service record, Provident Fund Booklet and even the annual reports contained the 1st respondents date of birth as 12th of June, 1927. It is impossible to believe that for all these years the 1st respondent was not aware of the date of birth in his service record or the Provident Fund Booklet. It is impossible to believe that he has not read a Single Annual Report in all these years. If, as claimed by him, he had informed the Company in 1953, he would surely have made some enquiry whether the service record was corrected. This would have been done, if not earlier, at least at the time when the settlement took place between the Union and the Company. That was the time when other employees were getting their age corrected and therefore it is impossible to believe that the 1st respondent would not have at that time ascertained what his date of birth was in the service record. 10. No reliance can be placed on the letter dated 15th May, 1953. This is produced for the first time in the High Court. There is no reference to this letter in the Advocates reply. In the suit, which had been filed by him, there was no reliance on any such written intimation. The learned Judge hearing the interim application noted that no document was produced. Significantly there is no endorsement of the Company or proof of service of such a letter on the Company. 11. In our view, the impugned Order cannot be sustained at all. The 1st respondent cannot be allowed to raise such a dispute at the fag end of his career. | 1[ds]It is settled law that at the fag end of career, a party cannot be allowed to raise a dispute regarding his date of birth. The case of the 1st respondent that he had intimated the Company in 1953 itself is not believable. In the application, which had been filed by the 1st respondent he himself had given his date of birth as 12th of June, 1927 and also mentioned that his age as 25 years. On the basis of this application and the Matriculation Certificate the Manager had issued a certificate. Thereafter his service record, Provident Fund Booklet and even the annual reports contained the 1st respondents date of birth as 12th of June, 1927. It is impossible to believe that for all these years the 1st respondent was not aware of the date of birth in his service record or the Provident Fund Booklet. It is impossible to believe that he has not read a Single Annual Report in all these years. If, as claimed by him, he had informed the Company in 1953, he would surely have made some enquiry whether the service record was corrected. This would have been done, if not earlier, at least at the time when the settlement took place between the Union and the Company. That was the time when other employees were getting their age corrected and therefore it is impossible to believe that the 1st respondent would not have at that time ascertained what his date of birth was in the service record.No reliance can be placed on the letter dated 15th May, 1953. This is produced for the first time in the High Court. There is no reference to this letter in the Advocates reply. In the suit, which had been filed by him, there was no reliance on any such written intimation. The learned Judge hearing the interim application noted that no document was produced. Significantly there is no endorsement of the Company or proof of service of such a letter on the Company.In our view, the impugned Order cannot be sustained at all. The 1st respondent cannot be allowed to raise such a dispute at the fag end of his career. | 1 | 1,353 | 401 | ### 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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was a settlement between the management of M/s. Brooke Bond Lipton India Limited and the All India Brooke Bond Employees Federation. By this it was, inter alia, agreed that the age of the employees would be decided on the basis of the birth certificate and school or university certificate. It was agreed that in future no fresh cases would be brought up for consideration about the date of birth of an employee. The 1st respondent raised no dispute in respect of his date of birth at this time. 4. As the 1st respondents date of birth was 12th of June, 1927 he was to retire, as per the Company rules, on 1st of April, 1987 M/s. Brooke Bond Lipton India Limited sent a notice dated 11th November, 1986 intimating 1st respondent that he was due to retire on 1st of April, 1987. They enquired whether he wished to encash his leave. In reply to this, the 1st respondent by his Advocates letter dated 14th November, 1986, for the first time raised a contention that his date of birth was 29th August, 1930 and not 12th June, 1927. The 1st respondent claimed that the date of birth in the SSC Certificate had been corrected and that the corrected date had been informed to the Company in the year 1953 itself. At this stage to be noted that in the Advocates letter it is not claimed that a written intimation had been given to the Company. M/s. Brooke Bond Lipton India Limited point out that the date of birth in the Provident Fund Booklet and the Service record is 12th June, 1927. They reiterate that the 1st respondent would be retiring on 1st April, 1987. 5. The 1st respondent then filed a suit in the Court of the III Additional Munsiff, Belgaum praying for a declaration that his date of birth be corrected. In this suit he applied for an interim injunction. The trial Court by a detailed and reasoned order refused interim injunction. In so refusing the trial Court, inter alia, observed as follows :- "It is the say of the plaintiff that in the year 1953 itself this was informed to the defendant company for due correction in his service records. No documents have been produced by the plaintiff do not disclose the fact that such an information was given to the defendant-Company, if really such an information was given, the plaintiff ought to have followed it up with some enquiry etc., in this connection. Noting is before the Court to show that any correspondence was done with the defendant-Company in this regard." >6. On 1st of April, 1987, the 1st respondent retired and accepted his retiral benefits and dues. Thereafter on 2nd of June, 1987, the 1st respondent raised an industrial dispute claiming that his correct date of birth was 29th of August, 1930. The Industrial Tribunal by its award dated 4th October, 1993 allowed the claim of the 1st respondent. The Industrial Tribunal directed M/s. Brooke Bond Lipton India Limited to pay full back wages for 3 years along with consequential benefits to the 1st respondent. 7. The appellant filed a Writ Petition in the High Court of Karnataka. The writ petition was allowed by a Single Judge on 13th June, 1996. The Single Judge noted that the material on record was sufficient to show that the 1st respondents date of birth in the records was 12th June, 1927 and that only at the fag end of his career he could not be allowed to raise a dispute regarding his date of birth. 8. The 1st respondent filed a writ appeal which has been allowed by a Division Bench by the impugned order dated 24th June, 1998. The appellant have thus filed this appeal. 9. We have heard the parties. It is settled law that at the fag end of career, a party cannot be allowed to raise a dispute regarding his date of birth. The case of the 1st respondent that he had intimated the Company in 1953 itself is not believable. In the application, which had been filed by the 1st respondent he himself had given his date of birth as 12th of June, 1927 and also mentioned that his age as 25 years. On the basis of this application and the Matriculation Certificate the Manager had issued a certificate. Thereafter his service record, Provident Fund Booklet and even the annual reports contained the 1st respondents date of birth as 12th of June, 1927. It is impossible to believe that for all these years the 1st respondent was not aware of the date of birth in his service record or the Provident Fund Booklet. It is impossible to believe that he has not read a Single Annual Report in all these years. If, as claimed by him, he had informed the Company in 1953, he would surely have made some enquiry whether the service record was corrected. This would have been done, if not earlier, at least at the time when the settlement took place between the Union and the Company. That was the time when other employees were getting their age corrected and therefore it is impossible to believe that the 1st respondent would not have at that time ascertained what his date of birth was in the service record. 10. No reliance can be placed on the letter dated 15th May, 1953. This is produced for the first time in the High Court. There is no reference to this letter in the Advocates reply. In the suit, which had been filed by him, there was no reliance on any such written intimation. The learned Judge hearing the interim application noted that no document was produced. Significantly there is no endorsement of the Company or proof of service of such a letter on the Company. 11. In our view, the impugned Order cannot be sustained at all. The 1st respondent cannot be allowed to raise such a dispute at the fag end of his career.
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1
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It is settled law that at the fag end of career, a party cannot be allowed to raise a dispute regarding his date of birth. The case of the 1st respondent that he had intimated the Company in 1953 itself is not believable. In the application, which had been filed by the 1st respondent he himself had given his date of birth as 12th of June, 1927 and also mentioned that his age as 25 years. On the basis of this application and the Matriculation Certificate the Manager had issued a certificate. Thereafter his service record, Provident Fund Booklet and even the annual reports contained the 1st respondents date of birth as 12th of June, 1927. It is impossible to believe that for all these years the 1st respondent was not aware of the date of birth in his service record or the Provident Fund Booklet. It is impossible to believe that he has not read a Single Annual Report in all these years. If, as claimed by him, he had informed the Company in 1953, he would surely have made some enquiry whether the service record was corrected. This would have been done, if not earlier, at least at the time when the settlement took place between the Union and the Company. That was the time when other employees were getting their age corrected and therefore it is impossible to believe that the 1st respondent would not have at that time ascertained what his date of birth was in the service record.No reliance can be placed on the letter dated 15th May, 1953. This is produced for the first time in the High Court. There is no reference to this letter in the Advocates reply. In the suit, which had been filed by him, there was no reliance on any such written intimation. The learned Judge hearing the interim application noted that no document was produced. Significantly there is no endorsement of the Company or proof of service of such a letter on the Company.In our view, the impugned Order cannot be sustained at all. The 1st respondent cannot be allowed to raise such a dispute at the fag end of his career.
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Gorakhram Sadhuram Vs. Laxmibai Wife Of Inderlal Nandlal | willing to give anything to him and to his father, but that he was willing to transfer the house to his wife, that he and his father agreed not to object to the auction sale if Murlidhar agreed to transfer the Malad house to his wifes name, and that the terms of the agreement were settled between Murlidhar on the one hand and by him and his father on the other and that his wife was present in the room. It was urged that according to this statement the agreement was really made between Murlidhar and the plaintiffs husband and father-in-law and that the plaintiffs statement that she had arrived at an agreement with Murlidhar about the house and the ring cannot be accepted as true. We do not see any force in this contention. On the materials on the record it cannot be doubted that the demand for the diamond ring and for the release of the house from the mortgagees emanated from the plaintiff. Whether that demand was conveyed to the creditors representative directly by her or through her son or husband is not very material because such a procedure would be in keeping with the habits and modes of the life of the people who were transacting the business. It also cannot be doubted that the creditors representative was not prepared either to give the ring or the house to the mortgagors who would not have retained these things for a very long time and the very purpose of giving them would have been defeated. Thus the promise to give the house and the ring could only have been made to the person who made the demand and that person therefore would be the promisee under this agreement as regards these two items of property. The creditors representative, whether directly in conversation with her or by an open declaration in her presence, made a promise to the plaintiff that the house and the ring would be given to her. That she did become the promisee under his contract is clearly proved not only by the oral evidence but from the recital in the first letter in which it was clearly stipulated that she would pay the costs of the conveyance. It was in the status of a promisee that the conveyance had to be executed in her name. This construction of the agreement is fully supported by the conduct of the promisers immediately after the contract had been made. The promisors started performing their promise within two months of its having been made by directly handing over the ring to the plaintiff regarding which demand was conveyed to them by her through her husband. As soon as they succeeded in buying the property at the auction sale, they called upon the promisee who had undertaken the obligation to pay the expenses of the conveyance through the proper channel, to meet the stamp expenses in connection with the sale certificate. They further allowed her to occupy the property. The two Courts below have found that the defendants had incurred the expenses of payment of municipal taxes, etc., concerning the bungalow but that the recovered these amounts from the plaintiff. That finding is supported by the oral evidence on the record. The defendants also stood by and allowed the promisee through her husband to spend considerable sums of money on repairs and remodelling of the house. In all respects the defendants fully fulfilled their part of the promise but defaulted in executing the conveyance. When the whole promise has been substantially fulfilled and it only remains to pass legal title by the execution of a conveyance, the objection raised as to the plaintiff not being a party to the contract seems to be fulfil. It was expressly agreed that the conveyance would be executed in her name and she was therefore entitled to demand that. The decision of the High Court therefore on this point is affirmed and the contention of Mr. Setalvad negatived.(10) The contention that S. 66, Civil P.C. bars the suit has, in our opinion no, substance whatever. The appellants when they purchased the house at the auction sale were buying the property for themselves. They had undoubtedly entered into an agreement with the plaintiff that when they purchased the property at the auction sale they would convey it to her but that is not material for the application of S. 66. The property was purchased by them for a sum of Rs. 20,000. The conveyance to the plaintiff has to be for a debit of Rs. 40,000. The plea of benami purchase in such a situation could not be sustained and was rightly rejected by the High Court in appeal. The appellants purchased the property for themselves so that by acquiring it in their name they may be able to fulfil their agreement of sale with the plaintiff. In these circumstances, the provisions of S. 66 do not operate as a bar to the suit.(11) The last contention of Mr. Setalvad is equally without force. To all intents and purposes the plaintiff has been in possession of the house since the date of the agreement. She has incurred all the expenses in respect of taxes etc., she has made repairs in the house without any objection and has spent considerable sums of money on it and she has been residing in it. All that is now required is a formal document of title in her favour. The contention therefore that the suit is a belated one and that the position of the mortgagors has altered cannot be a ground to defeat her suit, particularly when the appeal court has granted her the relief claimed by her.(12) It was argued that the plaintiff could also maintain the suit as a beneficiary if she was not a party to the contract. It is unnecessary to examine this contention in view of the decision that she was actually a party to the agreement and could maintain the suit. | 0[ds]The letter ofin clear terms states that the bungalow was to be transferred in the name of the plaintiff and the expenses of the conveyance were to be borne by her and that the diamond ring was to be given to her.The letter ofacceptance given by the appellants accepted this proposal. It proceeded however to state that whenever the mortgagors asked the bungalow to be transferred in the name of the plaintiff it will be done at their cost and the ring will be given to her. The letters are not formal legal documents and no question was raised that the parties were not ad idem about the terms of the arrangement. There can, however, be no question that the intention of the parties was as expressed in the first letter that plaintiff would have to pay the costs of the conveyance and get it executed in her name. The appellants agreed to this. In the letter of acceptance the appellants were treating the mortgagors and their family including the plaintiff as one group because it is obvious enough that the transfer of the house in the name of the plaintiff was with the intention of benefiting her, her children, and, as a matter of fact, the whole family. As regards the ring, she was the sole promisee as it belonged toview of these circumstances I am not prepared to disbelieve the plaintiff when she states that she and Murlidhar agreed to the terms incorporated in the letter as regards the house and the ring. Chagla J. though he accepted her evidence as to the facts stated by her, was not prepared to hold on that statement that actually the agreement was made between her and Murlidhar. He thought that the arrangement made between the husband and theof the plaintiff and Murlidhar was only communicated to her. We have carefully read the evidence of the plaintiff and we consider that she has given her statement in a straightforward manner and we see no reason to disbelieve her statement when she says that both she and Murlidhar agreed to the terms of the arrangement. The clause in the debtors letter that she would be liable for payment of costs of the conveyance could not have been entered in it without her consent. About the ring, it was she and she alone who would have been keen to get it and without her demand having been met the amicable settlement could not have been made.(9) The plaintiffs husband, Inderlal Nandlal, also deposed that Murlidhar had told his wife that the diamond ring and the house would be given to her whenever she wanted them and that it was agreed that she would pay the cost of the transfer of the Malad Property in her name. Mr. Setalvad laid considerable stress on certain statements elicited in hisThe witness said that the plaintiff did not understand accounts and was not present when the accounts were being settled, that Murlidhar was not willing to give anything to him and to his father, but that he was willing to transfer the house to his wife, that he and his father agreed not to object to the auction sale if Murlidhar agreed to transfer the Malad house to his wifes name, and that the terms of the agreement were settled between Murlidhar on the one hand and by him and his father on the other and that his wife was present in the room. Itwas urged that according to this statement the agreement was really made between Murlidhar and the plaintiffs husband andand that the plaintiffs statement that she had arrived at an agreement with Murlidhar about the house and the ring cannot be accepted as true.We do not see any force in this contention. On the materials on the record it cannot be doubted that the demand for the diamond ring and for the release of the house from the mortgagees emanated from the plaintiff. Whether that demand was conveyed to the creditors representative directly by her or through her son or husband is not very material because such a procedure would be in keeping with the habits and modes of the life of the people who were transacting the business. It also cannot be doubted that the creditors representative was not prepared either to give the ring or the house to the mortgagors who would not have retained these things for a very long time and the very purpose of giving them would have been defeated. Thus the promise to give the house and the ring could only have been made to the person who made the demand and that person therefore would be the promisee under this agreement as regards these two items of property. The creditors representative, whether directly in conversation with her or by an open declaration in her presence, made a promise to the plaintiff that the house and the ring would be given to her. That she did become the promisee under his contract is clearly proved not only by the oral evidence but from the recital in the first letter in which it was clearly stipulated that she would pay the costs of the conveyance. It was in the status of a promisee that the conveyance had to be executed in her name. This construction of the agreement is fully supported by the conduct of the promisers immediately after the contract had been made. The promisors started performing their promise within two months of its having been made by directly handing over the ring to the plaintiff regarding which demand was conveyed to them by her through her husband. As soon as they succeeded in buying the property at the auction sale, they called upon the promisee who had undertaken the obligation to pay the expenses of the conveyance through the proper channel, to meet the stamp expenses in connection with the sale certificate. They further allowed her to occupy the property. The two Courts below have found that the defendants had incurred the expenses of payment of municipal taxes, etc., concerning the bungalow but that the recovered these amounts from the plaintiff. That finding is supported by the oral evidence on the record. The defendants also stood by and allowed the promisee through her husband to spend considerable sums of money on repairs and remodelling of the house. In all respects the defendants fully fulfilled their part of the promise but defaulted in executing the conveyance. When the whole promise has been substantially fulfilled and it only remains to pass legal title by the execution of a conveyance, the objection raised as to the plaintiff not being a party to the contract seems to be fulfil. It was expressly agreed that the conveyance would be executed in her name and she was therefore entitled to demand that. The decision of the High Court therefore on this point is affirmed and the contention of Mr. Setalvad negatived.(10) The contention that S. 66, Civil P.C. bars the suit has, in our opinion no, substance whatever. The appellants when they purchased the house at the auction sale were buying the property for themselves. They had undoubtedly entered into an agreement with the plaintiff that when they purchased the property at the auction sale they would convey it to her but that is not material for the application of S. 66. The property was purchased by them for a sum of Rs. 20,000. The conveyance to the plaintiff has to be for a debit of Rs. 40,000. The plea of benami purchase in such a situation could not be sustained and was rightly rejected by the High Court in appeal. The appellants purchased the property for themselves so that by acquiring it in their name they may be able to fulfil their agreement of sale with the plaintiff. In these circumstances, the provisions of S. 66 do not operate as a bar to the suit.(11) The last contention of Mr. Setalvad is equally without force. To all intents and purposes the plaintiff has been in possession of the house since the date of the agreement. She has incurred all the expenses in respect of taxes etc., she has made repairs in the house without any objection and has spent considerable sums of money on it and she has been residing in it. All that is now required is a formal document of title in her favour. The contention therefore that the suit is a belated one and that the position of the mortgagors has altered cannot be a ground to defeat her suit, particularly when the appeal court has granted her the relief claimed by her.(12) It was argued that the plaintiff could also maintain the suit as a beneficiary if she was not a party to the contract. It is unnecessary to examine this contention in view of the decision that she was actually a party to the agreement and could maintain the suit. | 0 | 3,966 | 1,592 | ### 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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willing to give anything to him and to his father, but that he was willing to transfer the house to his wife, that he and his father agreed not to object to the auction sale if Murlidhar agreed to transfer the Malad house to his wifes name, and that the terms of the agreement were settled between Murlidhar on the one hand and by him and his father on the other and that his wife was present in the room. It was urged that according to this statement the agreement was really made between Murlidhar and the plaintiffs husband and father-in-law and that the plaintiffs statement that she had arrived at an agreement with Murlidhar about the house and the ring cannot be accepted as true. We do not see any force in this contention. On the materials on the record it cannot be doubted that the demand for the diamond ring and for the release of the house from the mortgagees emanated from the plaintiff. Whether that demand was conveyed to the creditors representative directly by her or through her son or husband is not very material because such a procedure would be in keeping with the habits and modes of the life of the people who were transacting the business. It also cannot be doubted that the creditors representative was not prepared either to give the ring or the house to the mortgagors who would not have retained these things for a very long time and the very purpose of giving them would have been defeated. Thus the promise to give the house and the ring could only have been made to the person who made the demand and that person therefore would be the promisee under this agreement as regards these two items of property. The creditors representative, whether directly in conversation with her or by an open declaration in her presence, made a promise to the plaintiff that the house and the ring would be given to her. That she did become the promisee under his contract is clearly proved not only by the oral evidence but from the recital in the first letter in which it was clearly stipulated that she would pay the costs of the conveyance. It was in the status of a promisee that the conveyance had to be executed in her name. This construction of the agreement is fully supported by the conduct of the promisers immediately after the contract had been made. The promisors started performing their promise within two months of its having been made by directly handing over the ring to the plaintiff regarding which demand was conveyed to them by her through her husband. As soon as they succeeded in buying the property at the auction sale, they called upon the promisee who had undertaken the obligation to pay the expenses of the conveyance through the proper channel, to meet the stamp expenses in connection with the sale certificate. They further allowed her to occupy the property. The two Courts below have found that the defendants had incurred the expenses of payment of municipal taxes, etc., concerning the bungalow but that the recovered these amounts from the plaintiff. That finding is supported by the oral evidence on the record. The defendants also stood by and allowed the promisee through her husband to spend considerable sums of money on repairs and remodelling of the house. In all respects the defendants fully fulfilled their part of the promise but defaulted in executing the conveyance. When the whole promise has been substantially fulfilled and it only remains to pass legal title by the execution of a conveyance, the objection raised as to the plaintiff not being a party to the contract seems to be fulfil. It was expressly agreed that the conveyance would be executed in her name and she was therefore entitled to demand that. The decision of the High Court therefore on this point is affirmed and the contention of Mr. Setalvad negatived.(10) The contention that S. 66, Civil P.C. bars the suit has, in our opinion no, substance whatever. The appellants when they purchased the house at the auction sale were buying the property for themselves. They had undoubtedly entered into an agreement with the plaintiff that when they purchased the property at the auction sale they would convey it to her but that is not material for the application of S. 66. The property was purchased by them for a sum of Rs. 20,000. The conveyance to the plaintiff has to be for a debit of Rs. 40,000. The plea of benami purchase in such a situation could not be sustained and was rightly rejected by the High Court in appeal. The appellants purchased the property for themselves so that by acquiring it in their name they may be able to fulfil their agreement of sale with the plaintiff. In these circumstances, the provisions of S. 66 do not operate as a bar to the suit.(11) The last contention of Mr. Setalvad is equally without force. To all intents and purposes the plaintiff has been in possession of the house since the date of the agreement. She has incurred all the expenses in respect of taxes etc., she has made repairs in the house without any objection and has spent considerable sums of money on it and she has been residing in it. All that is now required is a formal document of title in her favour. The contention therefore that the suit is a belated one and that the position of the mortgagors has altered cannot be a ground to defeat her suit, particularly when the appeal court has granted her the relief claimed by her.(12) It was argued that the plaintiff could also maintain the suit as a beneficiary if she was not a party to the contract. It is unnecessary to examine this contention in view of the decision that she was actually a party to the agreement and could maintain the suit.
### Response:
0
### Explanation:
that Murlidhar was not willing to give anything to him and to his father, but that he was willing to transfer the house to his wife, that he and his father agreed not to object to the auction sale if Murlidhar agreed to transfer the Malad house to his wifes name, and that the terms of the agreement were settled between Murlidhar on the one hand and by him and his father on the other and that his wife was present in the room. Itwas urged that according to this statement the agreement was really made between Murlidhar and the plaintiffs husband andand that the plaintiffs statement that she had arrived at an agreement with Murlidhar about the house and the ring cannot be accepted as true.We do not see any force in this contention. On the materials on the record it cannot be doubted that the demand for the diamond ring and for the release of the house from the mortgagees emanated from the plaintiff. Whether that demand was conveyed to the creditors representative directly by her or through her son or husband is not very material because such a procedure would be in keeping with the habits and modes of the life of the people who were transacting the business. It also cannot be doubted that the creditors representative was not prepared either to give the ring or the house to the mortgagors who would not have retained these things for a very long time and the very purpose of giving them would have been defeated. Thus the promise to give the house and the ring could only have been made to the person who made the demand and that person therefore would be the promisee under this agreement as regards these two items of property. The creditors representative, whether directly in conversation with her or by an open declaration in her presence, made a promise to the plaintiff that the house and the ring would be given to her. That she did become the promisee under his contract is clearly proved not only by the oral evidence but from the recital in the first letter in which it was clearly stipulated that she would pay the costs of the conveyance. It was in the status of a promisee that the conveyance had to be executed in her name. This construction of the agreement is fully supported by the conduct of the promisers immediately after the contract had been made. The promisors started performing their promise within two months of its having been made by directly handing over the ring to the plaintiff regarding which demand was conveyed to them by her through her husband. As soon as they succeeded in buying the property at the auction sale, they called upon the promisee who had undertaken the obligation to pay the expenses of the conveyance through the proper channel, to meet the stamp expenses in connection with the sale certificate. They further allowed her to occupy the property. The two Courts below have found that the defendants had incurred the expenses of payment of municipal taxes, etc., concerning the bungalow but that the recovered these amounts from the plaintiff. That finding is supported by the oral evidence on the record. The defendants also stood by and allowed the promisee through her husband to spend considerable sums of money on repairs and remodelling of the house. In all respects the defendants fully fulfilled their part of the promise but defaulted in executing the conveyance. When the whole promise has been substantially fulfilled and it only remains to pass legal title by the execution of a conveyance, the objection raised as to the plaintiff not being a party to the contract seems to be fulfil. It was expressly agreed that the conveyance would be executed in her name and she was therefore entitled to demand that. The decision of the High Court therefore on this point is affirmed and the contention of Mr. Setalvad negatived.(10) The contention that S. 66, Civil P.C. bars the suit has, in our opinion no, substance whatever. The appellants when they purchased the house at the auction sale were buying the property for themselves. They had undoubtedly entered into an agreement with the plaintiff that when they purchased the property at the auction sale they would convey it to her but that is not material for the application of S. 66. The property was purchased by them for a sum of Rs. 20,000. The conveyance to the plaintiff has to be for a debit of Rs. 40,000. The plea of benami purchase in such a situation could not be sustained and was rightly rejected by the High Court in appeal. The appellants purchased the property for themselves so that by acquiring it in their name they may be able to fulfil their agreement of sale with the plaintiff. In these circumstances, the provisions of S. 66 do not operate as a bar to the suit.(11) The last contention of Mr. Setalvad is equally without force. To all intents and purposes the plaintiff has been in possession of the house since the date of the agreement. She has incurred all the expenses in respect of taxes etc., she has made repairs in the house without any objection and has spent considerable sums of money on it and she has been residing in it. All that is now required is a formal document of title in her favour. The contention therefore that the suit is a belated one and that the position of the mortgagors has altered cannot be a ground to defeat her suit, particularly when the appeal court has granted her the relief claimed by her.(12) It was argued that the plaintiff could also maintain the suit as a beneficiary if she was not a party to the contract. It is unnecessary to examine this contention in view of the decision that she was actually a party to the agreement and could maintain the suit.
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Zenith Infortech Limited & Others Vs. The Bank of New York Mellon London Branch & Another | payment to be made to the FCCB bond holders over a three year period in certain proceedings which were pending before the Securities Appellate Tribunal in appeal against an order passed by SEBI. On 4 July 2013, the Company Petition for winding up was fixed for hearing on 26 July 2013. In order to forestall the hearing of the Company Petition, the Appellant made an announcement on the website of the Bombay Stock Exchange to the effect that the Board of Directors had decided to make a reference to the BIFR under the Sick Industrial Companies (Special Provisions) Act, 1985 as the accumulated losses had exceeded the net worth of the Company as per the audited financial results on 30 June 2013. On 19 July 2013, the Company made a corporate announcement on the BSE website of its audited financial results for a period of nine months ending on 30 June 2013. On 19 July 2013, a reference was filed before the BIFR which was announced on 25 July 2013 in a corporate statement on the website. On 26 July 2013, the hearing of the Company Petition for winding up was fixed on 29 July 2013, when the Court was informed that a reference has been filed before the BIFR. This Court has been informed during the course of the hearing of the appeal that the reference was found not to be maintainable on 12 August 2013.11. The Learned Single Judge has considered the facts and circumstances which have been adverted to in the earlier part of this judgment and has arrived at the following conclusion:The Promoters/Directors of the Company have therefore left no stone unturned in ensuring that no amount whatsoever is paid to the Petitioner/bondholders of the FCCBs despite an amount of approx. Rs. 586 crores being due and payable to them till date. If at all the net worth of the Company has been eroded, there is no doubt that the same is the creation of the Promoters/Directors of the Company who have siphoned away the moneys from the Company with the sole intention of avoiding repayment of the amounts due under the FCCBs. The order passed by this Court on 9th October, 2012 cannot be said to have secured the claim of the Petitioner since as set out in the said order that was the best that could have been done by the Court whilst passing an order under the provisions of Order 38 Rule 5 of the Code of Civil Procedure, 1908. Under the circumstances the Promoters/Directors of the Company cannot be trusted with the affairs of the Company and if the Provisional Liquidator is not appointed, the Promoters/Directors of the Company who are only interested in personal gains and not in the interest of any of its shareholders, creditors, or workers will within no time bring the company to a standstill by siphoning/milking its balance assets by showing losses in its business and even bringing its 800 workmen on the streets. However, since Mr. Devetre has submitted that the Company is engaged in sensitive business viz. the CC Business and the office of the Liquidator High Court, Bombay may not be equipped to deal with the complex handling of such business, I appoint Shri Salil Shah, Advocate, as the Administrator of the Company. The Administrator shall take symbolic possession of the property, effects, actionable claims, books of accounts, statutory records and other documents of the Company. The Administrator may also retain copies of books of accounts, statutory records and other records as he may deem fit. The Directors of the Company shall provide all information sought by the Administrator pertaining to the working/affairs of the Company and shall forward the agenda of all Board Meetings/General Meetings at least 72 hours in advance to the Administrator and shall not take up any matter at any meeting which is not mentioned in the agenda. In case of emergency the Directors may hold a Board Meeting at short notice with the permission of the Administrator. However, the Administrator shall ensure that the day to day functioning of the Company is not hampered in any manner whatsoever.12. The Respondent applied before the Learned Single Judge for the appointment of a provisional liquidator. The Learned Single Judge has held, and in our view with justification, that if a Provisional Liquidator is not appointed, the promoters/directors of the Company who have been motivated by personal gain and not by the interests of the shareholders, creditors or workers may bring the business of the Company to a stand still by siphoning of its balance assets. This apprehension cannot be regarded as unfounded having regard to the course of events noted in the earlier part of the present judgment. However, it was urged on behalf of the Appellant before the Learned Single Judge that since the Company is engaged in a sensitive business, of Cloud Computing, the office of the Liquidator may not be equipped to deal with the complex handling of such a business. The Learned Single Judge hence directed that an administrator should be appointed. The Learned Single Judge has provided adequate safeguards by directing that the administrator will ensure that the day to day functioning of the Company is not hampered. The appointment of the administrator has been made, in these circumstances, with a view to safeguard the interests of the shareholders, creditors and the workers. Mr. R.A. Dada, Learned Senior Counsel for workers submitted that forty per cent of the turnover is paid towards the salaries of the employees and many of the employees were engaged in both software and hardware business. As the Learned Single Judge noted, having regard to the track record of the promoters/directors, it was necessary in the interests of employees themselves that an administrator should be appointed in the absence of which, in all likelihood, the business and assets would be wasted and the business would be brought to a standstill. The Learned Company Judge has acted within jurisdiction in issuing this direction. | 0[ds]10. In the present case, the material on record would indicate that the Company is unable to pay its debts. The Learned Single Judge has noted that on 17 June 2013, the Company made a settlement proposal for payment to be made to the FCCB bond holders over a three year period in certain proceedings which were pending before the Securities Appellate Tribunal in appeal against an order passed by SEBI. On 4 July 2013, the Company Petition for winding up was fixed for hearing on 26 July 2013. In order to forestall the hearing of the Company Petition, the Appellant made an announcement on the website of the Bombay Stock Exchange to the effect that the Board of Directors had decided to make a reference to the BIFR under the Sick Industrial Companies (Special Provisions) Act, 1985 as the accumulated losses had exceeded the net worth of the Company as per the audited financial results on 30 June 2013. On 19 July 2013, the Company made a corporate announcement on the BSE website of its audited financial results for a period of nine months ending on 30 June 2013. On 19 July 2013, a reference was filed before the BIFR which was announced on 25 July 2013 in a corporate statement on the website. On 26 July 2013, the hearing of the Company Petition for winding up was fixed on 29 July 2013, when the Court was informed that a reference has been filed before the BIFR. This Court has been informed during the course of the hearing of the appeal that the reference was found not to be maintainable on 12 August 2013.11. The Learned Single Judge has considered the facts and circumstances which have been adverted to in the earlier part of this judgment and has arrived at the following conclusion:The Promoters/Directors of the Company have therefore left no stone unturned in ensuring that no amount whatsoever is paid to the Petitioner/bondholders of the FCCBs despite an amount of approx. Rs. 586 crores being due and payable to them till date. If at all the net worth of the Company has been eroded, there is no doubt that the same is the creation of the Promoters/Directors of the Company who have siphoned away the moneys from the Company with the sole intention of avoiding repayment of the amounts due under the FCCBs. The order passed by this Court on 9th October, 2012 cannot be said to have secured the claim of the Petitioner since as set out in the said order that was the best that could have been done by the Court whilst passing an order under the provisions of Order 38 Rule 5 of the Code of Civil Procedure, 1908. Under the circumstances the Promoters/Directors of the Company cannot be trusted with the affairs of the Company and if the Provisional Liquidator is not appointed, the Promoters/Directors of the Company who are only interested in personal gains and not in the interest of any of its shareholders, creditors, or workers will within no time bring the company to a standstill by siphoning/milking its balance assets by showing losses in its business and even bringing its 800 workmen on the streets. However, since Mr. Devetre has submitted that the Company is engaged in sensitive business viz. the CC Business and the office of the Liquidator High Court, Bombay may not be equipped to deal with the complex handling of such business, I appoint Shri Salil Shah, Advocate, as the Administrator of the Company. The Administrator shall take symbolic possession of the property, effects, actionable claims, books of accounts, statutory records and other documents of the Company. The Administrator may also retain copies of books of accounts, statutory records and other records as he may deem fit. The Directors of the Company shall provide all information sought by the Administrator pertaining to the working/affairs of the Company and shall forward the agenda of all Board Meetings/General Meetings at least 72 hours in advance to the Administrator and shall not take up any matter at any meeting which is not mentioned in the agenda. In case of emergency the Directors may hold a Board Meeting at short notice with the permission of the Administrator. However, the Administrator shall ensure that the day to day functioning of the Company is not hampered in any manner whatsoever.12. The Respondent applied before the Learned Single Judge for the appointment of a provisional liquidator. The Learned Single Judge has held, and in our view with justification, that if a Provisional Liquidator is not appointed, the promoters/directors of the Company who have been motivated by personal gain and not by the interests of the shareholders, creditors or workers may bring the business of the Company to a stand still by siphoning of its balance assets. This apprehension cannot be regarded as unfounded having regard to the course of events noted in the earlier part of the present judgment. However, it was urged on behalf of the Appellant before the Learned Single Judge that since the Company is engaged in a sensitive business, of Cloud Computing, the office of the Liquidator may not be equipped to deal with the complex handling of such a business. The Learned Single Judge hence directed that an administrator should be appointed. The Learned Single Judge has provided adequate safeguards by directing that the administrator will ensure that the day to day functioning of the Company is not hampered. The appointment of the administrator has been made, in these circumstances, with a view to safeguard the interests of the shareholders, creditors and the workers. Mr. R.A. Dada, Learned Senior Counsel for workers submitted that forty per cent of the turnover is paid towards the salaries of the employees and many of the employees were engaged in both software and hardware business. As the Learned Single Judge noted, having regard to the track record of the promoters/directors, it was necessary in the interests of employees themselves that an administrator should be appointed in the absence of which, in all likelihood, the business and assets would be wasted and the business would be brought to a standstill. The Learned Company Judge has acted within jurisdiction in issuing this direction. | 0 | 4,680 | 1,122 | ### 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:
payment to be made to the FCCB bond holders over a three year period in certain proceedings which were pending before the Securities Appellate Tribunal in appeal against an order passed by SEBI. On 4 July 2013, the Company Petition for winding up was fixed for hearing on 26 July 2013. In order to forestall the hearing of the Company Petition, the Appellant made an announcement on the website of the Bombay Stock Exchange to the effect that the Board of Directors had decided to make a reference to the BIFR under the Sick Industrial Companies (Special Provisions) Act, 1985 as the accumulated losses had exceeded the net worth of the Company as per the audited financial results on 30 June 2013. On 19 July 2013, the Company made a corporate announcement on the BSE website of its audited financial results for a period of nine months ending on 30 June 2013. On 19 July 2013, a reference was filed before the BIFR which was announced on 25 July 2013 in a corporate statement on the website. On 26 July 2013, the hearing of the Company Petition for winding up was fixed on 29 July 2013, when the Court was informed that a reference has been filed before the BIFR. This Court has been informed during the course of the hearing of the appeal that the reference was found not to be maintainable on 12 August 2013.11. The Learned Single Judge has considered the facts and circumstances which have been adverted to in the earlier part of this judgment and has arrived at the following conclusion:The Promoters/Directors of the Company have therefore left no stone unturned in ensuring that no amount whatsoever is paid to the Petitioner/bondholders of the FCCBs despite an amount of approx. Rs. 586 crores being due and payable to them till date. If at all the net worth of the Company has been eroded, there is no doubt that the same is the creation of the Promoters/Directors of the Company who have siphoned away the moneys from the Company with the sole intention of avoiding repayment of the amounts due under the FCCBs. The order passed by this Court on 9th October, 2012 cannot be said to have secured the claim of the Petitioner since as set out in the said order that was the best that could have been done by the Court whilst passing an order under the provisions of Order 38 Rule 5 of the Code of Civil Procedure, 1908. Under the circumstances the Promoters/Directors of the Company cannot be trusted with the affairs of the Company and if the Provisional Liquidator is not appointed, the Promoters/Directors of the Company who are only interested in personal gains and not in the interest of any of its shareholders, creditors, or workers will within no time bring the company to a standstill by siphoning/milking its balance assets by showing losses in its business and even bringing its 800 workmen on the streets. However, since Mr. Devetre has submitted that the Company is engaged in sensitive business viz. the CC Business and the office of the Liquidator High Court, Bombay may not be equipped to deal with the complex handling of such business, I appoint Shri Salil Shah, Advocate, as the Administrator of the Company. The Administrator shall take symbolic possession of the property, effects, actionable claims, books of accounts, statutory records and other documents of the Company. The Administrator may also retain copies of books of accounts, statutory records and other records as he may deem fit. The Directors of the Company shall provide all information sought by the Administrator pertaining to the working/affairs of the Company and shall forward the agenda of all Board Meetings/General Meetings at least 72 hours in advance to the Administrator and shall not take up any matter at any meeting which is not mentioned in the agenda. In case of emergency the Directors may hold a Board Meeting at short notice with the permission of the Administrator. However, the Administrator shall ensure that the day to day functioning of the Company is not hampered in any manner whatsoever.12. The Respondent applied before the Learned Single Judge for the appointment of a provisional liquidator. The Learned Single Judge has held, and in our view with justification, that if a Provisional Liquidator is not appointed, the promoters/directors of the Company who have been motivated by personal gain and not by the interests of the shareholders, creditors or workers may bring the business of the Company to a stand still by siphoning of its balance assets. This apprehension cannot be regarded as unfounded having regard to the course of events noted in the earlier part of the present judgment. However, it was urged on behalf of the Appellant before the Learned Single Judge that since the Company is engaged in a sensitive business, of Cloud Computing, the office of the Liquidator may not be equipped to deal with the complex handling of such a business. The Learned Single Judge hence directed that an administrator should be appointed. The Learned Single Judge has provided adequate safeguards by directing that the administrator will ensure that the day to day functioning of the Company is not hampered. The appointment of the administrator has been made, in these circumstances, with a view to safeguard the interests of the shareholders, creditors and the workers. Mr. R.A. Dada, Learned Senior Counsel for workers submitted that forty per cent of the turnover is paid towards the salaries of the employees and many of the employees were engaged in both software and hardware business. As the Learned Single Judge noted, having regard to the track record of the promoters/directors, it was necessary in the interests of employees themselves that an administrator should be appointed in the absence of which, in all likelihood, the business and assets would be wasted and the business would be brought to a standstill. The Learned Company Judge has acted within jurisdiction in issuing this direction.
### Response:
0
### Explanation:
payment to be made to the FCCB bond holders over a three year period in certain proceedings which were pending before the Securities Appellate Tribunal in appeal against an order passed by SEBI. On 4 July 2013, the Company Petition for winding up was fixed for hearing on 26 July 2013. In order to forestall the hearing of the Company Petition, the Appellant made an announcement on the website of the Bombay Stock Exchange to the effect that the Board of Directors had decided to make a reference to the BIFR under the Sick Industrial Companies (Special Provisions) Act, 1985 as the accumulated losses had exceeded the net worth of the Company as per the audited financial results on 30 June 2013. On 19 July 2013, the Company made a corporate announcement on the BSE website of its audited financial results for a period of nine months ending on 30 June 2013. On 19 July 2013, a reference was filed before the BIFR which was announced on 25 July 2013 in a corporate statement on the website. On 26 July 2013, the hearing of the Company Petition for winding up was fixed on 29 July 2013, when the Court was informed that a reference has been filed before the BIFR. This Court has been informed during the course of the hearing of the appeal that the reference was found not to be maintainable on 12 August 2013.11. The Learned Single Judge has considered the facts and circumstances which have been adverted to in the earlier part of this judgment and has arrived at the following conclusion:The Promoters/Directors of the Company have therefore left no stone unturned in ensuring that no amount whatsoever is paid to the Petitioner/bondholders of the FCCBs despite an amount of approx. Rs. 586 crores being due and payable to them till date. If at all the net worth of the Company has been eroded, there is no doubt that the same is the creation of the Promoters/Directors of the Company who have siphoned away the moneys from the Company with the sole intention of avoiding repayment of the amounts due under the FCCBs. The order passed by this Court on 9th October, 2012 cannot be said to have secured the claim of the Petitioner since as set out in the said order that was the best that could have been done by the Court whilst passing an order under the provisions of Order 38 Rule 5 of the Code of Civil Procedure, 1908. Under the circumstances the Promoters/Directors of the Company cannot be trusted with the affairs of the Company and if the Provisional Liquidator is not appointed, the Promoters/Directors of the Company who are only interested in personal gains and not in the interest of any of its shareholders, creditors, or workers will within no time bring the company to a standstill by siphoning/milking its balance assets by showing losses in its business and even bringing its 800 workmen on the streets. However, since Mr. Devetre has submitted that the Company is engaged in sensitive business viz. the CC Business and the office of the Liquidator High Court, Bombay may not be equipped to deal with the complex handling of such business, I appoint Shri Salil Shah, Advocate, as the Administrator of the Company. The Administrator shall take symbolic possession of the property, effects, actionable claims, books of accounts, statutory records and other documents of the Company. The Administrator may also retain copies of books of accounts, statutory records and other records as he may deem fit. The Directors of the Company shall provide all information sought by the Administrator pertaining to the working/affairs of the Company and shall forward the agenda of all Board Meetings/General Meetings at least 72 hours in advance to the Administrator and shall not take up any matter at any meeting which is not mentioned in the agenda. In case of emergency the Directors may hold a Board Meeting at short notice with the permission of the Administrator. However, the Administrator shall ensure that the day to day functioning of the Company is not hampered in any manner whatsoever.12. The Respondent applied before the Learned Single Judge for the appointment of a provisional liquidator. The Learned Single Judge has held, and in our view with justification, that if a Provisional Liquidator is not appointed, the promoters/directors of the Company who have been motivated by personal gain and not by the interests of the shareholders, creditors or workers may bring the business of the Company to a stand still by siphoning of its balance assets. This apprehension cannot be regarded as unfounded having regard to the course of events noted in the earlier part of the present judgment. However, it was urged on behalf of the Appellant before the Learned Single Judge that since the Company is engaged in a sensitive business, of Cloud Computing, the office of the Liquidator may not be equipped to deal with the complex handling of such a business. The Learned Single Judge hence directed that an administrator should be appointed. The Learned Single Judge has provided adequate safeguards by directing that the administrator will ensure that the day to day functioning of the Company is not hampered. The appointment of the administrator has been made, in these circumstances, with a view to safeguard the interests of the shareholders, creditors and the workers. Mr. R.A. Dada, Learned Senior Counsel for workers submitted that forty per cent of the turnover is paid towards the salaries of the employees and many of the employees were engaged in both software and hardware business. As the Learned Single Judge noted, having regard to the track record of the promoters/directors, it was necessary in the interests of employees themselves that an administrator should be appointed in the absence of which, in all likelihood, the business and assets would be wasted and the business would be brought to a standstill. The Learned Company Judge has acted within jurisdiction in issuing this direction.
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Gauri Shankar Vs. State of Uttar Pradesh | (XXXVII of 1923) by the expression "notification under Section 4". But the experience of working of the Act indicated that declarations under Section 6 were issued long after publication of notification under Section 4 even where urgency clause was Invoked resulting in grave injustice to the land owners. Consequently to mitigate such injustice the proviso was added to Section 6 reducing the gap between notification under Section 4 and declaration under Section 6 of the L.A. Act to three years. The object and reasons for adding the proviso to Section 6 was, "at the same time, care has been taken to ensure that land acquisition proceedings do not linger on for unduly long time. The aforesaid Ordinance, therefore, provides that no declaration under Section 6 of the Act should be issued in respect of any particular land covered by a notification under Section 4(1) published after the commencement of the Ordinance, after the expiry of three years from the date of such publication." * The Parliament in our federal structure has the supremacy in legislative matters subject to the exclusive power of State on matters enumerated in List 11 of the Seventh Schedule. It would be unjust to exclude operation of the beneficent provision added for general betterment in social interest, by resorting to rule of construction. The courts are obliged to adopt a constructive approach while construing such provisions. In absence of express exclusion it is more in consonance with justice to hold that the restriction of three years added by the proviso to Section 6 applied to the Act. Any effort to demonstrate impossibility of completing proceedings within three years cannot be countenanced. Legislative intention cannot be frustrated by executive inaction. The acquisition proceedings thus came to end after expiry of three years from the date of issuance of notification under the Act analogous to Section 4 of the L.A. Act.48. But this is not the end. Even though the law is in favour of the petitioners but equity stands in their way since in pursuance of these proceedings the Avas Evam Vikas Parish ad entered into possession and constructed housing colonies as there was no interim order in favour of land owners during pendency of the writ petitions in the High Court. Therefore the individual interest of the land owners is faced with public interest of those large number of middle class persons who must have invested their lifes savings in purchasing these houses and the demolition of houses which are standing over the land and rendering its occupants homeless shall result in incalculable loss and injury. Larger social interest therefore requires this Court to mould the relief in such manner that justice may not suffer. No flaw has been found in the notifications issued for acquisition of land under Section 4 or publication of declaration under Section 6 of the Act. The infirmity has arisen due to procedural delay. It is well established that delay destroys the remedy but not the right. The Avas Evam Vikas Parishad could have acquired the land by issuing fresh notification. Therefore the equities can be adjusted by directing that the compensation to the land owners shall be paid by assuming that fresh proceedings for acquisition were taken in the year in which the declaration was published.49. Before parting it is also necessary to mention whether the petitioners who approached this Court under Article 32 can be denied hearing on points other than limitation only because their petitions had been tagged with special leave petition in which following order was passed:"Leave granted limited to the question as to whether the limitation provided in the proviso to Section 6 of the Land Acquisition Act introduced by the amending Act of 1967 is also applicable in the facts of this case in view of U.P. Avas Evam Vikas Adhiniyam." * From the order granting leave extracted above it is clear that the order was confined to facts of that case. It may legitimately be argued that the Bench hearing the appeals is not bound by the order granting leave as even though other aspects shall be deemed to have been heard and decided yet in absence of any decision or adjudication on merits it has no binding effect. Whether it is so or not need not be gone into in these petitions except observing that the implied rejection of an order does not amount to deciding on merits but in propriety and comity it is just and proper that except in very rare cases where injustice is manifest the Bench hearing the matter finally is expected to respect the earlier order passed by the Bench granting leave. But that does not apply to the writ petitions which were merely tagged with special leave petitions. In absence of any specific order it would not be fair to shut out the petitioners who invoked extraordinary jurisdiction of this Court merely because one of the questions, may be the main one, being common the petitions were directed to be connected either at the instance of the Bar or the Bench. Once the petitions were admitted the court has an obligation to hear them or to settle the question of law and permit the petitioners to seek their remedy on other issues in appropriate forum.50. For these reasons even though publication of declarations under the Act were beyond the period of three years it is not in interest of justice to quash the proceedings but the appellants shall be paid compensation of the land acquired on market value prevalent in the year in which the declaration analogous to Section 6 of the L.A. Act was published/issued by fictionally assuming that fresh notification under the Act analogous to Section 4 was issued in that year.51. So far the writ petitions are concerned it shall be open to petitioners to seek their remedy in appropriate forum against any aspect other than the limitation. The special leave petitions and writ petitions are dismissed subject to observations made above. ORDER 52. | 0[ds]It is not fully inconsistent and are not absolutely irreconcilable. Both doin relation to the procedure prescribed under the Acts. The Act doesindependently without in any way colliding with the L.A. Act. Therefore, Section 55 and the Schedule did not become void.It would thus be clear that in case of legislation by incorporation, incorporated provisions would become part and parcel of the later fresh statute as if it is written by pen in ink or printed bodily therein as part of the later statute and became an integral scheme of that Act. The Legislature while incorporating them did not intend to speculate that any subsequent amendment to the previous Act or its repeal would after the texture of the later Act, unless the previous Act is supplemental to the later Act or both are in parimateria in which case it would render the later Act wholly unworkable and ineffectual or by necessary intendment appliesCourt held that it was by way of reference and not by incorporation and the provis o to Section 6 would apply and if the declaration was not made within three years from the date of Section 36(4)(1) (sic) notification, the notification under Section 36(4)(1) (sic) of the Land Improvement Trust Act shall stand lapsed. We are in formed that the same bench directed these appeals to be heard later, though were posted together and obviously the bench was not inclined to apply the above ratio and intended to consider these appeals in the setting of the Act.Act.31. It would thus be clear that in case of legislation by incorporation the former Act becomes an integral part and parcel of the later Act, as if it was written with ink and printed in the later Act. Its validity including the provisions incorporated thereunder would be judged with reference to the power of the legislature enacting the later Act. It is not by reference. Logically when provisions in the former Act are repealed or amended, they do not, unless expressly made applicable to the subsequent Act, be deemed to be incorporated in it. The later Act is totally unaffected by any amendment or repeal. It would be subject to the except ions enumerated hereinbefore. The statute being distinct and different each is to be judged with reference to its own source that emerges from its scheme, language employed and purpose it seeks to achieve.32. If a later Act merely makes a reference to the earlier Act or existing law, it is only by way of reference and all amendments, repeal s, new law subsequently made will have effect unless its operation is saved by Section 8(1) of the General Clauses Act or is void under Article 254 of the Constitution.33. Section 55 of the Act read with the schedule made an express incorporation of the provisions of Section 4(i) and Section 6 as modified and incorporated in the schedule. The schedule effected necessary structural amendments to Sections 4, 6, 17 and 23 incorporating therein the procedure and principles with necessary modifications. Sections 28(2) and 32(1) prescribed procedure for publication of the notifications under Sections 28(1) and 32(1) of the Act without prescribing any limitation. It is a complete code in itself. The Act is not wholly unworkable or ineffectual though maybe incompatible with provisos to Section 6(1) of L.A. Act. The U.P. Legislature did not visualise that later amendment to Central Act 1 of 1894 i.e. L.A. Act would be automatically extended. We have, therefore, no hes itation to conclude that Section 55 and the schedule adapted only by incorporation Sections 4(1) and 6(1) and the subsequent amendments to Section 6 did not become part of the Act and they have no effect on the operation of the provisions of the Act.34. It is next contended that Section 55 and the schedule must be so read as to apply Section 6 as amended from time to time and shall be applicable to the proceedings taken under Sections 28 and 32 of the Act. We find no force in the contention. In Yuri Maru v. The Woron33 the Colonial Courts of Admiralty Act, 1890 limited the jurisdiction of the High Court of England as colonial Admiralty court established under the Act "as if existed at the passing of the Act". When suit for damages against charter party was laid in the Exchequer Court of Canada, which was established under the Admiralty Act, 1906, it was contended that it had ceased having jurisdiction for the action for damages for breach of charter party; the defendant being domiciled in London and the cause of action not having arisen within the limits of Exchequer Court of Canada, and the ship having been within the limits of the High Court of England it had jurisdiction as if the Act has been amended from time to time excluding the colonial jurisdiction of Canada Court. Therefore, the Exchequer Court of Canada had no jurisdiction to try the case. The Privy Council negatived the contention and held that the High Court of England had jurisdiction only as available at the time when the Act was made. The appellants claim that these words can be understood as applying to conditions which are to come into being upon and after passing of the Act and they offer in effect to make the meaning clear by reading into the sentence before the words "existing", the words "from time to time". The judicial committee negatived the contention and held that, "the admiralty jurisdiction of the High Court of England as then existing would not apply in the following words: 33 1927 AC 906the whole, the true intent of the Act appears to their Lordships to have been to define as a maximum of jurisdictional authority for the courts to be set up thereunder, the Admiralty jurisdiction of the High Court in England as it existed at the time when the Act was passed. What shall from time to time be added or excluded is left for independent legislative determination."It is, therefore, clear that by statutory interpretation the court has no power to add words or interpret the words "as amended from time to time ". 36. Shri Satish Chandra then contended that Section 2 of U.P. Amendment Act 28 of 1972 amended Section 6 of the Land Acquisition Act retrospectively and validated the invalid declaration under first proviso to Section 6(1) of the L.A. Act. By necessary implication the U.P. Legislature extended the first proviso to Section 6(1) to the acquisition under the Act, otherwise the State Amendment Act would be rendered otiose. The first proviso to Section 6(1) and(2) as amended b y the U.P. Legislature should be harmoniously interpreted to apply the first proviso to all the acquisition under the Act. Prima facie the argument though attractive, by deeper probe, we find it to be fallacious. It is seen that different local Acts applied the provisions of the L.A. Act, with different language. In U.P. Urban Land Planning and Development Act, 1973, Section 17 thereof adopted by reference the Land Acquisition Act, 1894 for acquisition of the land under that Act. It adopted not by incorporation therein. The declaration under Section 6 was made beyond the period of 3 years. So to validate those acquisitions, Amendment Act came to be made.37. It is next contended that by operation of proviso to Article 254(2) of the Constitution, Section 55 and the schedule became inconsistent with the first proviso to Section 6(1) of the L.A. Act. The Act received the assent of the President. The Amendment Acts of 1967 and 1984 brought on statu te the first and second provisos into Section 6(1) of the L.A. Act. The Act being earlier Section 55 and the schedule became void, the first proviso to Section 6(1) of L.A. Act would be applied and the declarations made beyond three years became void and inoperative. We find no force in the contention. It is seen that the purpose of the Act is not acquisition simpliciter. It is only to constitute or incorporate a Housing Board or its branches to regulate planned development of the urban area. Power has been given to the Board to frame the schemes and if necessary to acquire the land by agreement with the persons having interests in the land or by exchange or otherwise. Therefore, compulsory acquisition is only incidental to the main purpose. It is seen that in Narayanaiah21 and Govindan cases22 this Court emphasised that the Improvement Act has provided a special procedure for improvement of the city of Bangalore and urban areas . There is no express incorporation in those Acts of the Land Acquisition Act. Therefore, by reference they were made applicable. In Ahmad case 17 this Court in similar circumstances held that it is only by incorporation and purpose of the ac quisition of land is incidental. In Bolani Ores Ltd. case14 we have already seen that this Court held that the purpose of the Motor Vehicles Taxation Act was to regulate the motor vehicles and that the incorporation of Motor Vehicles define d under the Motor Vehicles Act, 1939 was as the part of the Taxation Act. Its constitutional validity was accordingly upheld.There is no doubt or difficulty as to applicability of the law under Article 254 of the Constitution. As to what would happen in a case of conflict between a Central and State Law occupying the same field enumerated in the concurrent list, Article 254 was enacted to solve that conflict. Article 254(1) envisages the normal rule that in the event of a conflict between the law made by the Union and the State Legislature in the concurrent field, the former prevails over the latter; if the law relating to the concurrent subject made by the State Legislature is repealed by Union law, whether Union law is prior or later in point of time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. An exception has been engrafted to this rule by clause (2) thereof, namely, if the State law has been reserved for consideration and the President gives assent to a State law, it will prevail, notwithstanding its repugnancy to a earlier law made by the Union, though both laws are dealing with a concurrent subject occupying the same field but operate in a collision course. The assent obtained from the President to the State Act which is inconsistent with the Union law prevails in that State and overrides the provisions of the Union law in its application to that State only. However, if the Parliament, in exercising its power under the proviso to Article 254( 2) makes a law adding, amending or repealing the Union law, predominance secured by the State law by the assent of the President is taken away and the repugnant State law though it became valid by virtue of Presidents assent, would be void eit her directly or by its repugnance with respect to the same matter. Tile Parliament may not expressly repeal the State law and by necessary implication the State law stands repealed to the extent of the repugnancy, as soon as the subsequent law of the Parliament creating repugnancy is made. Such repugnancy may also arise where both the laws are operating in the same field and they cannot possibly stand together. This is the consistent law laid by this Court. In Zaverbhai Amaidas v. State of Bombay35 Section 7 of the Essential Supplies (Temporary Powers) Act, 1946, was amended in 1948 and 1949 thereafter by Act LII of 1950. It was held that Act LII of 1950 is a legislation in respect of the same matter as Bombay Act (XXXVI of 19 47) within the meaning of Article 254(2) of the Constitution and therefore Section 2 of Bombay Act XXXVI of 1947 cannot prevail as against Section 7 of the Essential Supplies (Temporary Powers) Act as amended by Act LII of 1950. In M. Karunanidhi v. Union of India36 another Constitution Bench surveyed thewhen Tamil Nadu Public Men (Criminal Misconduct) Act, 1973 was challenged as being repugnant to the Code of Criminal Procedure, 1898, Prevention of Corruption Act, 1947 and Criminal Law (Amendment) Act, 1952 and laid down the test thus: (1) where the provisions of a Central Act and a State Act in the Concurrent List are .fully inconsistent and are absolutely irreconcilable, the Central Act will (emphasis supplied) prevail and the State Act will become void in view of the repugnancy; (2) where, however, a law passed by the State comes into collision with a law passed by Parliament oil an Entry in the Concurrent List, the State Act shall prevail to t he extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254; (3) where, however, a law made by the State Legislature on a subject covered b y the Concurrent List is inconsistent with or repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254. In that case it was held that part of the provisions were not repugnant in their application to the public men in Tamil Nadu but are void to the extent of public servants. T. Barai v. Henry Ah Hoe37 is a case where Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954 in the Concurrent List prescribes a punishment of six years and fine. The West Bengal State Legislature amended it by West Bengal Amendment Act, 1973 and prescribed a punishment of imprisonment for life for the self same offence under Section 16(1) of the Act, Prevention of Food Adulteration Act was amended by Parliament in 1976. Thequestion arose whether by operation of proviso to Article 254(2) the State law is void. Since the Central Amendment Act, 1976 occupies the same field imposing lesser punishment, the previous State law imposing punishment of imprisonment for life, though received the assent of the President was held to be void.It is seen that the Act was made under Entry 6, Entry 5 and Entry 66 of the State List and incidentally it took recourse to Entry 42 of the Concurrent List. Presumptive evidence furnishes that the State Legislature would be aware of the Central law and appreciated the local needs and the remedy is provided for and would make the law. Every endeavour should be made to allow both the laws to operate in their respective field. Unless State law is fully inconsistent and absolutely irreconcilable it would not be correct to conclude that repugnancy renders the State law void. Since the main purpose of the Act is not the acquisition of the property as the provisions do indicate in pith and substance that they do not occupy the sameis not fully inconsistent and are not absolutely irreconcilable. Both doin relation to the procedure prescribed under the Acts. The Act doesy without in any way colliding with the L.A. Act. Therefore, Section 55 and the Schedule did not become void. | 0 | 15,884 | 2,904 | ### 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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(XXXVII of 1923) by the expression "notification under Section 4". But the experience of working of the Act indicated that declarations under Section 6 were issued long after publication of notification under Section 4 even where urgency clause was Invoked resulting in grave injustice to the land owners. Consequently to mitigate such injustice the proviso was added to Section 6 reducing the gap between notification under Section 4 and declaration under Section 6 of the L.A. Act to three years. The object and reasons for adding the proviso to Section 6 was, "at the same time, care has been taken to ensure that land acquisition proceedings do not linger on for unduly long time. The aforesaid Ordinance, therefore, provides that no declaration under Section 6 of the Act should be issued in respect of any particular land covered by a notification under Section 4(1) published after the commencement of the Ordinance, after the expiry of three years from the date of such publication." * The Parliament in our federal structure has the supremacy in legislative matters subject to the exclusive power of State on matters enumerated in List 11 of the Seventh Schedule. It would be unjust to exclude operation of the beneficent provision added for general betterment in social interest, by resorting to rule of construction. The courts are obliged to adopt a constructive approach while construing such provisions. In absence of express exclusion it is more in consonance with justice to hold that the restriction of three years added by the proviso to Section 6 applied to the Act. Any effort to demonstrate impossibility of completing proceedings within three years cannot be countenanced. Legislative intention cannot be frustrated by executive inaction. The acquisition proceedings thus came to end after expiry of three years from the date of issuance of notification under the Act analogous to Section 4 of the L.A. Act.48. But this is not the end. Even though the law is in favour of the petitioners but equity stands in their way since in pursuance of these proceedings the Avas Evam Vikas Parish ad entered into possession and constructed housing colonies as there was no interim order in favour of land owners during pendency of the writ petitions in the High Court. Therefore the individual interest of the land owners is faced with public interest of those large number of middle class persons who must have invested their lifes savings in purchasing these houses and the demolition of houses which are standing over the land and rendering its occupants homeless shall result in incalculable loss and injury. Larger social interest therefore requires this Court to mould the relief in such manner that justice may not suffer. No flaw has been found in the notifications issued for acquisition of land under Section 4 or publication of declaration under Section 6 of the Act. The infirmity has arisen due to procedural delay. It is well established that delay destroys the remedy but not the right. The Avas Evam Vikas Parishad could have acquired the land by issuing fresh notification. Therefore the equities can be adjusted by directing that the compensation to the land owners shall be paid by assuming that fresh proceedings for acquisition were taken in the year in which the declaration was published.49. Before parting it is also necessary to mention whether the petitioners who approached this Court under Article 32 can be denied hearing on points other than limitation only because their petitions had been tagged with special leave petition in which following order was passed:"Leave granted limited to the question as to whether the limitation provided in the proviso to Section 6 of the Land Acquisition Act introduced by the amending Act of 1967 is also applicable in the facts of this case in view of U.P. Avas Evam Vikas Adhiniyam." * From the order granting leave extracted above it is clear that the order was confined to facts of that case. It may legitimately be argued that the Bench hearing the appeals is not bound by the order granting leave as even though other aspects shall be deemed to have been heard and decided yet in absence of any decision or adjudication on merits it has no binding effect. Whether it is so or not need not be gone into in these petitions except observing that the implied rejection of an order does not amount to deciding on merits but in propriety and comity it is just and proper that except in very rare cases where injustice is manifest the Bench hearing the matter finally is expected to respect the earlier order passed by the Bench granting leave. But that does not apply to the writ petitions which were merely tagged with special leave petitions. In absence of any specific order it would not be fair to shut out the petitioners who invoked extraordinary jurisdiction of this Court merely because one of the questions, may be the main one, being common the petitions were directed to be connected either at the instance of the Bar or the Bench. Once the petitions were admitted the court has an obligation to hear them or to settle the question of law and permit the petitioners to seek their remedy on other issues in appropriate forum.50. For these reasons even though publication of declarations under the Act were beyond the period of three years it is not in interest of justice to quash the proceedings but the appellants shall be paid compensation of the land acquired on market value prevalent in the year in which the declaration analogous to Section 6 of the L.A. Act was published/issued by fictionally assuming that fresh notification under the Act analogous to Section 4 was issued in that year.51. So far the writ petitions are concerned it shall be open to petitioners to seek their remedy in appropriate forum against any aspect other than the limitation. The special leave petitions and writ petitions are dismissed subject to observations made above. ORDER 52.
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and the State Legislature in the concurrent field, the former prevails over the latter; if the law relating to the concurrent subject made by the State Legislature is repealed by Union law, whether Union law is prior or later in point of time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. An exception has been engrafted to this rule by clause (2) thereof, namely, if the State law has been reserved for consideration and the President gives assent to a State law, it will prevail, notwithstanding its repugnancy to a earlier law made by the Union, though both laws are dealing with a concurrent subject occupying the same field but operate in a collision course. The assent obtained from the President to the State Act which is inconsistent with the Union law prevails in that State and overrides the provisions of the Union law in its application to that State only. However, if the Parliament, in exercising its power under the proviso to Article 254( 2) makes a law adding, amending or repealing the Union law, predominance secured by the State law by the assent of the President is taken away and the repugnant State law though it became valid by virtue of Presidents assent, would be void eit her directly or by its repugnance with respect to the same matter. Tile Parliament may not expressly repeal the State law and by necessary implication the State law stands repealed to the extent of the repugnancy, as soon as the subsequent law of the Parliament creating repugnancy is made. Such repugnancy may also arise where both the laws are operating in the same field and they cannot possibly stand together. This is the consistent law laid by this Court. In Zaverbhai Amaidas v. State of Bombay35 Section 7 of the Essential Supplies (Temporary Powers) Act, 1946, was amended in 1948 and 1949 thereafter by Act LII of 1950. It was held that Act LII of 1950 is a legislation in respect of the same matter as Bombay Act (XXXVI of 19 47) within the meaning of Article 254(2) of the Constitution and therefore Section 2 of Bombay Act XXXVI of 1947 cannot prevail as against Section 7 of the Essential Supplies (Temporary Powers) Act as amended by Act LII of 1950. In M. Karunanidhi v. Union of India36 another Constitution Bench surveyed thewhen Tamil Nadu Public Men (Criminal Misconduct) Act, 1973 was challenged as being repugnant to the Code of Criminal Procedure, 1898, Prevention of Corruption Act, 1947 and Criminal Law (Amendment) Act, 1952 and laid down the test thus: (1) where the provisions of a Central Act and a State Act in the Concurrent List are .fully inconsistent and are absolutely irreconcilable, the Central Act will (emphasis supplied) prevail and the State Act will become void in view of the repugnancy; (2) where, however, a law passed by the State comes into collision with a law passed by Parliament oil an Entry in the Concurrent List, the State Act shall prevail to t he extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254; (3) where, however, a law made by the State Legislature on a subject covered b y the Concurrent List is inconsistent with or repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254. In that case it was held that part of the provisions were not repugnant in their application to the public men in Tamil Nadu but are void to the extent of public servants. T. Barai v. Henry Ah Hoe37 is a case where Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954 in the Concurrent List prescribes a punishment of six years and fine. The West Bengal State Legislature amended it by West Bengal Amendment Act, 1973 and prescribed a punishment of imprisonment for life for the self same offence under Section 16(1) of the Act, Prevention of Food Adulteration Act was amended by Parliament in 1976. Thequestion arose whether by operation of proviso to Article 254(2) the State law is void. Since the Central Amendment Act, 1976 occupies the same field imposing lesser punishment, the previous State law imposing punishment of imprisonment for life, though received the assent of the President was held to be void.It is seen that the Act was made under Entry 6, Entry 5 and Entry 66 of the State List and incidentally it took recourse to Entry 42 of the Concurrent List. Presumptive evidence furnishes that the State Legislature would be aware of the Central law and appreciated the local needs and the remedy is provided for and would make the law. Every endeavour should be made to allow both the laws to operate in their respective field. Unless State law is fully inconsistent and absolutely irreconcilable it would not be correct to conclude that repugnancy renders the State law void. Since the main purpose of the Act is not the acquisition of the property as the provisions do indicate in pith and substance that they do not occupy the sameis not fully inconsistent and are not absolutely irreconcilable. Both doin relation to the procedure prescribed under the Acts. The Act doesy without in any way colliding with the L.A. Act. Therefore, Section 55 and the Schedule did not become void.
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Tara Chand Vs. State of Rajasthan and Others | corpus on behalf of Shri Shishupal (hereinafter called the detenu) who has been preventively detained in pursuance of an order passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called the COFEPOSA). The detention order was passed by Shri L. N. Gupta, Commissioner & Administration, Secretary, Home Department, Rajasthan, Jaipur. The detenu was arrested in pursuance of that order on November 2, 1979. The grounds of detention were served on the detenu on November 3, 1979. 2. On November 3, 1979 the detenus brother Tara Chand addressed a letter to the detaining authority on behalf of detenu praying for revocation of the order of detention. This letter was more in the nature of complaint against the Customs Officer, and less than a representation against the grounds of detention. The prayer made in this letter was rejected on November 19, 1979. 3. A meeting of the Advisory Board was held on November 30, 1979. The detenu was heard by the Board. The Board made report on December 3, 1979 justifying the detention. The detention was confirmed by the State Government on December 15, 1979. 4. On February 23, 1980, the detenu made a representation to the Central Government praying for revocation of his detention under Section 11 of the COFEPOSA. Another representation of the same date was sent by the detenu to the detaining authority. 5. It is alleged in the petition that these representations have not been considered by Central Government or the detaining authority up to the date of the writ petition. The representation dated February 23, 1980, of the detenu against the grounds of his detention reached the detaining authority on March 27, 1980, that is, after a delay of one month and five days. 6. It was contended on behalf of the petitioner; that there has been an infringement of the constitutional safeguards and imperatives embodied in Article 22(5) of the Constitution inasmuch as - (i) The detenu was never told that he had a right to make a representation and to whom the representation was to be addressed. (ii) There was extreme callousness and delay on the part of the detaining authority in considering the detenus representation, dated February 23, 1980, against the grounds of detention. (iii) The authoritys refusal to send the representation of the detenu to the Advisory Board on the ground that he had been heard in person by the Board. 7. Shri Vishnu Dutta Sharma, Additional Director of Prosecution, Home Department, Government of Rajasthan, has filed a counter-affidavit on behalf of respondents 1, 2 and 4. In para 21 of this counter, it is admitted that the petitioner had sent an application under Section 11 of the COFEPOSA for revocation of the detention order to the order to the Central Government and that application was received in the office of the Home Secretary on March 6, 1980 for para-wise comments. It is further stated in that Para : The Secretary on March 7, 1980 forwarded the same to the Collector of Customs, Jaipur for sending his comments. The comments of the Collector of Customs, Jaipur were received on March 13, 1980 in the office of the Home Secretary. The State Government sent its comments to the Secretary, Ministry of Finance, New Delhi on March 14, 1980. The answering respondents are not aware as to how the Central Government has dealt with the matter thereafter. 8. In the counter, it is further denied that a representation dated February 23, 1980 on the same lines as revocation application to the Central Government, was sent to the detaining authority. It is added that the application dated February 23, 1980 of the detenu addressed to the detaining authority, was only for supply of the copies of the relevant documents and for reconsideration by the Advisory Board. It is significantly admitted that this application (representation) dated February 23, 1980 of the detenu was received by the Home Secretary to the Government of Rajasthan on March 27, 1980 through the Inspector General of Prisons. Thereupon the copies were called for from the Collector, Customs and supplied to the detenu on April 1, 1980. 9. In spit of these evasive answer contained in para 21, it is clear that the representation dated February 23, 1980 of the detenu made by him through the jail authorities reached the detaining authority only on March 27, 1980. It was substantially in the same terms as the representation addressed to the Central Government for revocation of the detention under Section 11. This delay of one month and five days in communicating the representation of the detenu from the jail to the detaining authority demonstrates the gross negligence and extreme callousness with which the representation made by the detenu was dealt with by the respondents or their agents. Even after this huge delay, the representation was sent to the Collector for comments, and no intimation has been sent to the detenu about the fact of his representation dated February 23, 1980, addressed to the detaining authority. In fact, as it appears from the counter, the detaining authority refused to consider the same merely because the detenu had requested that this representation be forwarded to the Advisory Board, also. The mere fact that the meeting of the Advisory Board has been held earlier was not a valid excuse for the detaining authority in not considering the representation of the detenu at all. 10. It is well settled that in case of preventive detention of a citizen, Article 22(5) of the Constitution enjoins that the obligation of the appropriate Government or of the detaining authority to afford the detenu the earliest opportunity to make a representation and consider that the representation speedily is distinct from the Governments obligation to constitute a Board and to communicate the representation, amongst other materials, to the Board to enable it to form its opinion and obtain such opinion. In the instant case, there has been a breach of this constitutional imperatives. | 1[ds]9. In spit of these evasive answer contained in para 21, it is clear that the representation dated February 23, 1980 of the detenu made by him through the jail authorities reached the detaining authority only on March 27, 1980. It was substantially in the same terms as the representation addressed to the Central Government for revocation of the detention under Section 11. This delay of one month and five days in communicating the representation of the detenu from the jail to the detaining authority demonstrates the gross negligence and extreme callousness with which the representation made by the detenu was dealt with by the respondents or their agents. Even after this huge delay, the representation was sent to the Collector for comments, and no intimation has been sent to the detenu about the fact of his representation dated February 23, 1980, addressed to the detaining authority. In fact, as it appears from the counter, the detaining authority refused to consider the same merely because the detenu had requested that this representation be forwarded to the Advisory Board, also. The mere fact that the meeting of the Advisory Board has been held earlier was not a valid excuse for the detaining authority in not considering the representation of the detenu at all10. It is well settled that in case of preventive detention of a citizen, Article 22(5) of the Constitution enjoins that the obligation of the appropriate Government or of the detaining authority to afford the detenu the earliest opportunity to make a representation and consider that the representation speedily is distinct from the Governments obligation to constitute a Board and to communicate the representation, amongst other materials, to the Board to enable it to form its opinion and obtain such opinion. In the instant case, there has been a breach of this constitutional imperatives. | 1 | 1,146 | 335 | ### 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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corpus on behalf of Shri Shishupal (hereinafter called the detenu) who has been preventively detained in pursuance of an order passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called the COFEPOSA). The detention order was passed by Shri L. N. Gupta, Commissioner & Administration, Secretary, Home Department, Rajasthan, Jaipur. The detenu was arrested in pursuance of that order on November 2, 1979. The grounds of detention were served on the detenu on November 3, 1979. 2. On November 3, 1979 the detenus brother Tara Chand addressed a letter to the detaining authority on behalf of detenu praying for revocation of the order of detention. This letter was more in the nature of complaint against the Customs Officer, and less than a representation against the grounds of detention. The prayer made in this letter was rejected on November 19, 1979. 3. A meeting of the Advisory Board was held on November 30, 1979. The detenu was heard by the Board. The Board made report on December 3, 1979 justifying the detention. The detention was confirmed by the State Government on December 15, 1979. 4. On February 23, 1980, the detenu made a representation to the Central Government praying for revocation of his detention under Section 11 of the COFEPOSA. Another representation of the same date was sent by the detenu to the detaining authority. 5. It is alleged in the petition that these representations have not been considered by Central Government or the detaining authority up to the date of the writ petition. The representation dated February 23, 1980, of the detenu against the grounds of his detention reached the detaining authority on March 27, 1980, that is, after a delay of one month and five days. 6. It was contended on behalf of the petitioner; that there has been an infringement of the constitutional safeguards and imperatives embodied in Article 22(5) of the Constitution inasmuch as - (i) The detenu was never told that he had a right to make a representation and to whom the representation was to be addressed. (ii) There was extreme callousness and delay on the part of the detaining authority in considering the detenus representation, dated February 23, 1980, against the grounds of detention. (iii) The authoritys refusal to send the representation of the detenu to the Advisory Board on the ground that he had been heard in person by the Board. 7. Shri Vishnu Dutta Sharma, Additional Director of Prosecution, Home Department, Government of Rajasthan, has filed a counter-affidavit on behalf of respondents 1, 2 and 4. In para 21 of this counter, it is admitted that the petitioner had sent an application under Section 11 of the COFEPOSA for revocation of the detention order to the order to the Central Government and that application was received in the office of the Home Secretary on March 6, 1980 for para-wise comments. It is further stated in that Para : The Secretary on March 7, 1980 forwarded the same to the Collector of Customs, Jaipur for sending his comments. The comments of the Collector of Customs, Jaipur were received on March 13, 1980 in the office of the Home Secretary. The State Government sent its comments to the Secretary, Ministry of Finance, New Delhi on March 14, 1980. The answering respondents are not aware as to how the Central Government has dealt with the matter thereafter. 8. In the counter, it is further denied that a representation dated February 23, 1980 on the same lines as revocation application to the Central Government, was sent to the detaining authority. It is added that the application dated February 23, 1980 of the detenu addressed to the detaining authority, was only for supply of the copies of the relevant documents and for reconsideration by the Advisory Board. It is significantly admitted that this application (representation) dated February 23, 1980 of the detenu was received by the Home Secretary to the Government of Rajasthan on March 27, 1980 through the Inspector General of Prisons. Thereupon the copies were called for from the Collector, Customs and supplied to the detenu on April 1, 1980. 9. In spit of these evasive answer contained in para 21, it is clear that the representation dated February 23, 1980 of the detenu made by him through the jail authorities reached the detaining authority only on March 27, 1980. It was substantially in the same terms as the representation addressed to the Central Government for revocation of the detention under Section 11. This delay of one month and five days in communicating the representation of the detenu from the jail to the detaining authority demonstrates the gross negligence and extreme callousness with which the representation made by the detenu was dealt with by the respondents or their agents. Even after this huge delay, the representation was sent to the Collector for comments, and no intimation has been sent to the detenu about the fact of his representation dated February 23, 1980, addressed to the detaining authority. In fact, as it appears from the counter, the detaining authority refused to consider the same merely because the detenu had requested that this representation be forwarded to the Advisory Board, also. The mere fact that the meeting of the Advisory Board has been held earlier was not a valid excuse for the detaining authority in not considering the representation of the detenu at all. 10. It is well settled that in case of preventive detention of a citizen, Article 22(5) of the Constitution enjoins that the obligation of the appropriate Government or of the detaining authority to afford the detenu the earliest opportunity to make a representation and consider that the representation speedily is distinct from the Governments obligation to constitute a Board and to communicate the representation, amongst other materials, to the Board to enable it to form its opinion and obtain such opinion. In the instant case, there has been a breach of this constitutional imperatives.
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9. In spit of these evasive answer contained in para 21, it is clear that the representation dated February 23, 1980 of the detenu made by him through the jail authorities reached the detaining authority only on March 27, 1980. It was substantially in the same terms as the representation addressed to the Central Government for revocation of the detention under Section 11. This delay of one month and five days in communicating the representation of the detenu from the jail to the detaining authority demonstrates the gross negligence and extreme callousness with which the representation made by the detenu was dealt with by the respondents or their agents. Even after this huge delay, the representation was sent to the Collector for comments, and no intimation has been sent to the detenu about the fact of his representation dated February 23, 1980, addressed to the detaining authority. In fact, as it appears from the counter, the detaining authority refused to consider the same merely because the detenu had requested that this representation be forwarded to the Advisory Board, also. The mere fact that the meeting of the Advisory Board has been held earlier was not a valid excuse for the detaining authority in not considering the representation of the detenu at all10. It is well settled that in case of preventive detention of a citizen, Article 22(5) of the Constitution enjoins that the obligation of the appropriate Government or of the detaining authority to afford the detenu the earliest opportunity to make a representation and consider that the representation speedily is distinct from the Governments obligation to constitute a Board and to communicate the representation, amongst other materials, to the Board to enable it to form its opinion and obtain such opinion. In the instant case, there has been a breach of this constitutional imperatives.
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Tata Iron & Steel Co. Ltd Vs. Commnr. Of Central Excise & Customs | Note to Rule 4 is concerned it is no doubt true that the Interpretative Notes are part of the Rules and hence statutory. However, the question is one of their applicability. The part of Interpretative Note to Rule 4 relied on by the Tribunal has been couched in a negative form and is accompanied by a proviso. It means that the charges or costs described in clauses (a), (b) and (c) are not to be included in the value of imported goods subject to satisfying the requirement of the proviso that the charges were distinguishable from the price actually paid or payable for the imported goods. This part of the Interpretative Note cannot be so read as to mean that those charges which are not covered in clauses (a) to (c) are available to be included in the value of imported goods. To illustrate, if the seller has undertaken to erect or assemble the machinery after its importation into India and levied certain charges of rendering such service the price paid therefor shall not be liable to be included in the value of the goods if it has been paid separately and is clearly distinguishable from the price actually paid or payable for the imported goods. Obviously, this Interpretative Note cannot be pressed into service for calculating the price of any drawings or technical documents though separately paid by including them in the price of imported equipments. Clause (a) in third para of Note to Rule 4 is suggestive of charges for services rendered by the seller in connection with construction, erection etc. of imported goods. The value of documents and drawings etc. cannot be "charges for construction, erection, assembly etc." of imported goods. Alternatively, even on the view as taken by the Tribunal on this Note, the drawings and documents having been supplied to the buyer-importer for use during construction, erection, assembly, maintenance etc. of imported goods, they were relatable to post-import activity to be undertaken by the appellant. Such charges were covered by a separate contract, i.e. contract MD 301. They could not have been included in the value of imported goods merely because the value of documents referable to imported equipments and materials was mixed up with the value of those documents which were referable to equipment which was yet to be procured or imported or manufactured by the appellant : the value of the latter category of documents also being neither dutiable nor clubbable with the value of imported goods. The Tribunal has not doubted the genuineness of the contracts entered into between the appellant and SNP. Rather it has observed vide para 10.2 of its order that entering into two contracts (MD 301 and MD 302) was a legal necessity. The Tribunal has also stated that it was not recording any finding of `skewed split up. Shri Ashok Desai, the learned senior counsel for the appellant has pointed out that under Chapter Heading 49.06 of the Customs Tariff Act, 1975 plans and drawings for engineering and industrial purposes being originals drawn by hand as also their photographic reproductions on sentisized papers and carbon copies thereof are declared free from payment of customs duty. Sub-rules (3) and (4) of Rule 9 clearly provide that additions to the price actually paid or payable is permissible under the Rules if based on objective and quantifiable data and no addition except as provided for by Rule 9 is permissible.18. The abovesaid reasons demolish the edifice on which the order of the Tribunal is based. However, still the only thing that remains to be considered is whether there has been under valuation of blast furnace equipment covered by the contract MD 302. It is a pure and simple case of finding out `the price actually paid or payable for the goods - the phrase as occurring in Rules 2(f), 4 and 9, so as to find out the transaction value and levy duty thereon under Sections 12 and 14 of the Customs Act. Once of the allegations made in the show cause notice given to the appellant was of the blast furnace equipments (BFE) having been undervalued by transferring a part of the value of the equipments to the value of engineering documents and drawings. In substance the show cause notice alleged the blast furnace equipment having been under valued by artificially excluding therefrom the value of technical documents. According to the Revenue such documents are even otherwise and in ordinary course supplied by the seller to the buyer. Because of the absence of such documents the goods sold being equipments would be of no use at all but the appellant had so manipulated the single transaction by bifurcating the single content into two documents so as to under value the blast furnace equipments by transferring a part of the value of such equipments to the value of engineering documents and drawings. The gist of the allegation is under valuation of blast furnace equipment. Shri Kirit Raval, the learned Additional Solicitor General has submitted that from the stage of the show cause notice till before the Tribunal the Revenue has kept its plea alive. Vide para 7 of its order the Tribunal noted this plea of the Revenue but did not go into it as the Tribunal considered it not necessary in view of other findings arrived at. The learned Additional Solicitor General submitted that if this Court may not sustain the order of the Tribunal then in all fairness the Revenue should be allowed an opportunity of substantiating its plea of under valuation followed by such other relief to which it may be entitled in the event of its succeeding on its plea. We find merit in this submission. In our opinion on the order of the Tribunal being set aside the matter needs to be sent back to the Tribunal for examining on merits the abovesaid plea of the Revenue which was refused to be gone into earlier on account of its having been found to be unnecessary. | 1[ds]11. A perusal of the order of the Tribunal shows that it has mainly proceeded on two sets of reasoning for holding against the appellant. Firstly, the Tribunal has examined the applicability of Rule 9(1)(b)(iv) and formed an opinion that benefit thereofwas not available tothe appellant. By reference to the Interpretative Note to Rule 4 it has held that to the extent the drawings and technical documents were referable to the manufacture and sale of the imported equipments, their value was liable to be included in the value of the equipments and material imported and inasmuch as separate values thereof have not been shown the entire value of 12.5 million DM of technical documentation covered by contract DM 301 was liable to be included in the value of the equipments. Secondly, the Tribunal has held the provisions of Rule 9(1)(e) being attracted and coming into play for the purpose of determining the valuation of the equipment and materials imported on the reasoning that the drawings and engineerings were compulsorily purchasable by the appellant along with the equipment and materials and hence the value of the two was liable to be clubbed. Shri Ashok Desai, the learned senior counsel for the appellant has vehemently attached the correctness of the reasoning employed by the Tribunal and has submitted that the Tribunal has gone totally amiss in interpreting the rules and judging the case thereunder. It was submitted by Shri Ashok Desai that the interpretation as placed on the rules by the Tribunal is not correct. We will presently test the correctness of the contention so advanced.A bare reading of Rule 9(1)(b) shows that it refers to the value of the four specified goods and services supplied by the buyer free of charge or at a reduced cost for use in connection with the production and sale of imported goods to the seller and to the extent that such value has not been included in the price actually paid or payable. To illustrate, the seller may have manufactured equipments of a design, drawings whereof were made available by the buyer say by engaging an independent expert agency in the country of the seller. Although the seller has not incurred any expenditure on the technical/engineering design of the equipment manufactured by it yet the price paid for securing the engineering designs and drawings will be a component of the value of the equipment manufactured. In spite of the price for the service rendered by the expert agency having been paid by the buyer, the value thereof is liable to be added to the value of the imported goods for determining the transaction value. In the case at hand it is nobodys case that that buyer had supplied any goods or services free of charge or at reduced cost for use in connection with the production and sale for export of imported goods. All the exercise done by the Tribunal in scrutinising the documents forming subject matter of contract DM 301 so as to classify them into three categories stated earlier in this judgment was therefore uncalled for. SNP had purchased the entire steel plant equipment from an Italian supplier more than six years before the transaction in question had taken place with the appellant. Such documents must have accompanied the equipments and materials made available to SNP by the Italian supplier of SNP. It cannot be comprehended and certainly it is not the case of the Revenue that the technical documents were supplied or made available by the Italian supplier to SNP either free of charge at the instance of the appellant or cost thereof was incurred wholly or partially by the appellant.It is nobodys case that the seller had an obligation towards a third party which was required to be satisfied by it and the buyer (i.e. the appellant) had made any payment to the seller or to a third party in order to satisfy such an obligation. The price paid by the appellant for drawings and technical documents forming subject matter of contract DM 301 can by no stretch of imagination fall within the meaning of `an obligation of the seller to a third party. There was also no payment made as a condition of sale of imported goods as such. Rule 9(1)(e) also, therefore, has no applicability.17. So far as Interpretative Note to Rule 4 is concerned it is no doubt true that the Interpretative Notes are part of the Rules and hence statutory. However, the question is one of their applicability. The part of Interpretative Note to Rule 4 relied on by the Tribunal has been couched in a negative form and is accompanied by a proviso. It means that the charges or costs described in clauses (a), (b) and (c) are not to be included in the value of imported goods subject to satisfying the requirement of the proviso that the charges were distinguishable from the price actually paid or payable for the imported goods. This part of the Interpretative Note cannot be so read as to mean that those charges which are not covered in clauses (a) to (c) are available to be included in the value of imported goods. To illustrate, if the seller has undertaken to erect or assemble the machinery after its importation into India and levied certain charges of rendering such service the price paid therefor shall not be liable to be included in the value of the goods if it has been paid separately and is clearly distinguishable from the price actually paid or payable for the imported goods. Obviously, this Interpretative Note cannot be pressed into service for calculating the price of any drawings or technical documents though separately paid by including them in the price of imported equipments. Clause (a) in third para of Note to Rule 4 is suggestive of charges for services rendered by the seller in connection with construction, erection etc. of imported goods. The value of documents and drawings etc. cannot be "charges for construction, erection, assembly etc." of imported goods. Alternatively, even on the view as taken by the Tribunal on this Note, the drawings and documents having been supplied to thefor use during construction, erection, assembly, maintenance etc. of imported goods, they were relatable toactivity to be undertaken by the appellant. Such charges were covered by a separate contract, i.e. contract MD 301. They could not have been included in the value of imported goods merely because the value of documents referable to imported equipments and materials was mixed up with the value of those documents which were referable to equipment which was yet to be procured or imported or manufactured by the appellant : the value of the latter category of documents also being neither dutiable nor clubbable with the value of imported goods. The Tribunal has not doubted the genuineness of the contracts entered into between the appellant and SNP. Rather it has observed vide para 10.2 of its order that entering into two contracts (MD 301 and MD 302) was a legal necessity. The Tribunal has also stated that it was not recording any finding of `skewed split up. Shri Ashok Desai, the learned senior counsel for the appellant has pointed out that under Chapter Heading 49.06 of the Customs Tariff Act, 1975 plans and drawings for engineering and industrial purposes being originals drawn by hand as also their photographic reproductions on sentisized papers and carbon copies thereof are declared free from payment of customs duty.(3) and (4) of Rule 9 clearly provide that additions to the price actually paid or payable is permissible under the Rules if based on objective and quantifiable data and no addition except as provided for by Rule 9 is permissible.18. The abovesaid reasons demolish the edifice on which the order of the Tribunal is based. However, still the only thing that remains to be considered is whether there has been under valuation of blast furnace equipment covered by the contract MD 302. It is a pure and simple case of finding out `the price actually paid or payable for the goodsthe phrase as occurring in Rules 2(f), 4 and 9, so as to find out the transaction value and levy duty thereon under Sections 12 and 14 of the Customs Act. Once of the allegations made in the show cause notice given to the appellant was of the blast furnace equipments (BFE) having been undervalued by transferring a part of the value of the equipments to the value of engineering documents and drawings. In substance the show cause notice alleged the blast furnace equipment having been under valued by artificially excluding therefrom the value of technical documents. According to the Revenue such documents are even otherwise and in ordinary course supplied by the seller to the buyer. Because of the absence of such documents the goods sold being equipments would be of no use at all but the appellant had so manipulated the single transaction by bifurcating the single content into two documents so as to under value the blast furnace equipments by transferring a part of the value of such equipments to the value of engineering documents and drawings. The gist of the allegation is under valuation of blast furnace equipment.Shri Kirit Raval, the learned Additional Solicitor General has submitted that from the stage of the show cause notice till before the Tribunal the Revenue has kept its plea alive. Vide para 7 of its order the Tribunal noted this plea of the Revenue but did not go into it as the Tribunal considered it not necessary in view of other findings arrived at. The learned Additional Solicitor General submitted that if this Court may not sustain the order of the Tribunal then in all fairness the Revenue should be allowed an opportunity of substantiating its plea of under valuation followed by such other relief to which it may be entitled in the event of its succeeding on its plea.We find merit in this submission. In our opinion on the order of the Tribunal being set aside the matter needs to be sent back to the Tribunal for examining on merits the abovesaid plea of the Revenue which was refused to be gone into earlier on account of its having been found to be unnecessary. | 1 | 4,944 | 1,858 | ### 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:
Note to Rule 4 is concerned it is no doubt true that the Interpretative Notes are part of the Rules and hence statutory. However, the question is one of their applicability. The part of Interpretative Note to Rule 4 relied on by the Tribunal has been couched in a negative form and is accompanied by a proviso. It means that the charges or costs described in clauses (a), (b) and (c) are not to be included in the value of imported goods subject to satisfying the requirement of the proviso that the charges were distinguishable from the price actually paid or payable for the imported goods. This part of the Interpretative Note cannot be so read as to mean that those charges which are not covered in clauses (a) to (c) are available to be included in the value of imported goods. To illustrate, if the seller has undertaken to erect or assemble the machinery after its importation into India and levied certain charges of rendering such service the price paid therefor shall not be liable to be included in the value of the goods if it has been paid separately and is clearly distinguishable from the price actually paid or payable for the imported goods. Obviously, this Interpretative Note cannot be pressed into service for calculating the price of any drawings or technical documents though separately paid by including them in the price of imported equipments. Clause (a) in third para of Note to Rule 4 is suggestive of charges for services rendered by the seller in connection with construction, erection etc. of imported goods. The value of documents and drawings etc. cannot be "charges for construction, erection, assembly etc." of imported goods. Alternatively, even on the view as taken by the Tribunal on this Note, the drawings and documents having been supplied to the buyer-importer for use during construction, erection, assembly, maintenance etc. of imported goods, they were relatable to post-import activity to be undertaken by the appellant. Such charges were covered by a separate contract, i.e. contract MD 301. They could not have been included in the value of imported goods merely because the value of documents referable to imported equipments and materials was mixed up with the value of those documents which were referable to equipment which was yet to be procured or imported or manufactured by the appellant : the value of the latter category of documents also being neither dutiable nor clubbable with the value of imported goods. The Tribunal has not doubted the genuineness of the contracts entered into between the appellant and SNP. Rather it has observed vide para 10.2 of its order that entering into two contracts (MD 301 and MD 302) was a legal necessity. The Tribunal has also stated that it was not recording any finding of `skewed split up. Shri Ashok Desai, the learned senior counsel for the appellant has pointed out that under Chapter Heading 49.06 of the Customs Tariff Act, 1975 plans and drawings for engineering and industrial purposes being originals drawn by hand as also their photographic reproductions on sentisized papers and carbon copies thereof are declared free from payment of customs duty. Sub-rules (3) and (4) of Rule 9 clearly provide that additions to the price actually paid or payable is permissible under the Rules if based on objective and quantifiable data and no addition except as provided for by Rule 9 is permissible.18. The abovesaid reasons demolish the edifice on which the order of the Tribunal is based. However, still the only thing that remains to be considered is whether there has been under valuation of blast furnace equipment covered by the contract MD 302. It is a pure and simple case of finding out `the price actually paid or payable for the goods - the phrase as occurring in Rules 2(f), 4 and 9, so as to find out the transaction value and levy duty thereon under Sections 12 and 14 of the Customs Act. Once of the allegations made in the show cause notice given to the appellant was of the blast furnace equipments (BFE) having been undervalued by transferring a part of the value of the equipments to the value of engineering documents and drawings. In substance the show cause notice alleged the blast furnace equipment having been under valued by artificially excluding therefrom the value of technical documents. According to the Revenue such documents are even otherwise and in ordinary course supplied by the seller to the buyer. Because of the absence of such documents the goods sold being equipments would be of no use at all but the appellant had so manipulated the single transaction by bifurcating the single content into two documents so as to under value the blast furnace equipments by transferring a part of the value of such equipments to the value of engineering documents and drawings. The gist of the allegation is under valuation of blast furnace equipment. Shri Kirit Raval, the learned Additional Solicitor General has submitted that from the stage of the show cause notice till before the Tribunal the Revenue has kept its plea alive. Vide para 7 of its order the Tribunal noted this plea of the Revenue but did not go into it as the Tribunal considered it not necessary in view of other findings arrived at. The learned Additional Solicitor General submitted that if this Court may not sustain the order of the Tribunal then in all fairness the Revenue should be allowed an opportunity of substantiating its plea of under valuation followed by such other relief to which it may be entitled in the event of its succeeding on its plea. We find merit in this submission. In our opinion on the order of the Tribunal being set aside the matter needs to be sent back to the Tribunal for examining on merits the abovesaid plea of the Revenue which was refused to be gone into earlier on account of its having been found to be unnecessary.
### Response:
1
### Explanation:
9(1)(e) also, therefore, has no applicability.17. So far as Interpretative Note to Rule 4 is concerned it is no doubt true that the Interpretative Notes are part of the Rules and hence statutory. However, the question is one of their applicability. The part of Interpretative Note to Rule 4 relied on by the Tribunal has been couched in a negative form and is accompanied by a proviso. It means that the charges or costs described in clauses (a), (b) and (c) are not to be included in the value of imported goods subject to satisfying the requirement of the proviso that the charges were distinguishable from the price actually paid or payable for the imported goods. This part of the Interpretative Note cannot be so read as to mean that those charges which are not covered in clauses (a) to (c) are available to be included in the value of imported goods. To illustrate, if the seller has undertaken to erect or assemble the machinery after its importation into India and levied certain charges of rendering such service the price paid therefor shall not be liable to be included in the value of the goods if it has been paid separately and is clearly distinguishable from the price actually paid or payable for the imported goods. Obviously, this Interpretative Note cannot be pressed into service for calculating the price of any drawings or technical documents though separately paid by including them in the price of imported equipments. Clause (a) in third para of Note to Rule 4 is suggestive of charges for services rendered by the seller in connection with construction, erection etc. of imported goods. The value of documents and drawings etc. cannot be "charges for construction, erection, assembly etc." of imported goods. Alternatively, even on the view as taken by the Tribunal on this Note, the drawings and documents having been supplied to thefor use during construction, erection, assembly, maintenance etc. of imported goods, they were relatable toactivity to be undertaken by the appellant. Such charges were covered by a separate contract, i.e. contract MD 301. They could not have been included in the value of imported goods merely because the value of documents referable to imported equipments and materials was mixed up with the value of those documents which were referable to equipment which was yet to be procured or imported or manufactured by the appellant : the value of the latter category of documents also being neither dutiable nor clubbable with the value of imported goods. The Tribunal has not doubted the genuineness of the contracts entered into between the appellant and SNP. Rather it has observed vide para 10.2 of its order that entering into two contracts (MD 301 and MD 302) was a legal necessity. The Tribunal has also stated that it was not recording any finding of `skewed split up. Shri Ashok Desai, the learned senior counsel for the appellant has pointed out that under Chapter Heading 49.06 of the Customs Tariff Act, 1975 plans and drawings for engineering and industrial purposes being originals drawn by hand as also their photographic reproductions on sentisized papers and carbon copies thereof are declared free from payment of customs duty.(3) and (4) of Rule 9 clearly provide that additions to the price actually paid or payable is permissible under the Rules if based on objective and quantifiable data and no addition except as provided for by Rule 9 is permissible.18. The abovesaid reasons demolish the edifice on which the order of the Tribunal is based. However, still the only thing that remains to be considered is whether there has been under valuation of blast furnace equipment covered by the contract MD 302. It is a pure and simple case of finding out `the price actually paid or payable for the goodsthe phrase as occurring in Rules 2(f), 4 and 9, so as to find out the transaction value and levy duty thereon under Sections 12 and 14 of the Customs Act. Once of the allegations made in the show cause notice given to the appellant was of the blast furnace equipments (BFE) having been undervalued by transferring a part of the value of the equipments to the value of engineering documents and drawings. In substance the show cause notice alleged the blast furnace equipment having been under valued by artificially excluding therefrom the value of technical documents. According to the Revenue such documents are even otherwise and in ordinary course supplied by the seller to the buyer. Because of the absence of such documents the goods sold being equipments would be of no use at all but the appellant had so manipulated the single transaction by bifurcating the single content into two documents so as to under value the blast furnace equipments by transferring a part of the value of such equipments to the value of engineering documents and drawings. The gist of the allegation is under valuation of blast furnace equipment.Shri Kirit Raval, the learned Additional Solicitor General has submitted that from the stage of the show cause notice till before the Tribunal the Revenue has kept its plea alive. Vide para 7 of its order the Tribunal noted this plea of the Revenue but did not go into it as the Tribunal considered it not necessary in view of other findings arrived at. The learned Additional Solicitor General submitted that if this Court may not sustain the order of the Tribunal then in all fairness the Revenue should be allowed an opportunity of substantiating its plea of under valuation followed by such other relief to which it may be entitled in the event of its succeeding on its plea.We find merit in this submission. In our opinion on the order of the Tribunal being set aside the matter needs to be sent back to the Tribunal for examining on merits the abovesaid plea of the Revenue which was refused to be gone into earlier on account of its having been found to be unnecessary.
|
K. Suresh Vs. New India Assurance Co.Ltd | of earning capacity as a result of the permanent disability would be approximately the same as the percentage of permanent disability in which case, of course, the court or tribunal would adopt the said percentage for determination of compensation. To arrive at the said conclusion reliance was placed on Arvind Kumar Mishra (supra) and Yadav Kumar (supra). 26. In the case at hand the High Court has determined the loss of earning capacity on the base of multiplier method and reduced the quantum awarded by the tribunal from Rs.5,00,000/- to Rs.4,68,000/-. Applying the ratio in Yadav Kumar (supra) and Arvind Kumar Mishra (supra) and also Raj Kumar (supra) and regard being had to the serious nature of injury we do not find any error in the said method of calculation and, accordingly, we uphold the method of computation as well as the quantum. 27. Presently to the grant of compensation on other scores. It is noticeable that the High Court has reduced the additional medical expenses from Rs.2,00,000/- to Rs.50,000/-. In our considered opinion, the same is not correct as there is ample evidence on record as regards the necessity for treatment in future. It is demonstrable that pedicle screws were passed into pedicles of D11 vertebra; pedicle screws were passed into pedicles of L1 vertebra; and two screws on left thigh were connected using a rod each. That may be required to be removed or scanned from time to time depending upon other aspects. That apart, there is persistent pain and as medically advised physiotherapy is necessary and hence, continuous treatment has to be availed of. Thus, the High Court was not justified in reducing the said amount. 28. The High Court has maintained the award in respect of transport charges, extra nourishment, medical expenses and, accordingly, they are maintained. It has enhanced the award from Rs.2,00,000/- to Rs.2,50,000 on the head of pain and suffering, but has deleted the amount awarded on permanent disability from the total compensation awarded by the tribunal by relying on the decision in Cholan Roadways Corporation Ltd. (supra). As has been stated earlier, the said decision has been considered in B. Kothandapani (supra) and is not accepted, and this Court has expressed the view that grant of compensation towards permanent disability is permissible. Regard been had to the totality of the facts and circumstances, we are inclined to think that compensation of Rs.2,50,000/- should be granted towards permanent disability and Rs.2,00,000/- towards pain and suffering. We have so held as the injury is of serious nature and under the heading of non-pecuniary damages compensation is awardable under the headings of pain and suffering and damages for loss of amenities of life on account of injury. In the case of R.D. Hattangadi (supra) this Court has granted compensation under two heads, namely, “pain and suffering” and “loss of amenities of life”. Quite apart from that compensation was granted towards future earnings. In Laxman v. Divisional Manager, Oriental Insurance Co. Ltd. and another [2012 ACJ 191 ] it has been ruled thus: - “The ratio of the above noted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earnings and victim’s inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.” Thus, the deletion by the High Court was not justified. However, we have restricted to the amount as stated hereinbefore. 29. The High Court has deleted the additional transport charges. We are disposed to think that while availing treatment the said expenses would be imperative. Hence, there was no justification to reduce the same and, accordingly, we restore it.30. It is perceptible that the High Court has deleted the amount awarded under the head of pain and suffering by family members of the claimant and the amount granted towards loss of marital life. There is no iota of evidence with regard to loss of marital life, hence, we do not find any error in the said deletion. As far as grant of compensation on the score of pain and suffering suffered by the family members of claimant is concerned, the same is not permissible and, accordingly, we hold that that has been correctly deleted.31. The High Court has deleted an amount of Rs.3,00,000/- and a sum of Rs.2,00,000/- towards mental agony and inability on the part of the claimant to participate in public functions respectively. We have already determined Rs.2,00,000/- under the heading of pain and suffering already suffered and to be suffered and Rs.2,50,000/- under the heading of permanent disability and hence, no different sum need be awarded under the heading of mental agony. As far as participation in public functions is concerned, there is no evidence in that regard and, therefore, we are disposed to think that the finding of the High Court on that score is totally justified and does not call for any interference.32. Calculated on the aforesaid base, the compensation would be payable on the headings, namely, transport charges, extra-nourishment, medical expenses, additional medical expenses, additional transport charges, pain and suffering, loss of earning capacity and permanent disability and the amount on the aforesaid scores would be, in toto, Rs.13,48,000/-. The said amount shall carry interest at the rate of 7.5% from the date of application till the date of payment. The same shall be deposited before the tribunal within a period of two months and the tribunal shall disburse 50% of the amount in favour of the claimant and the rest of the amount shall be deposited in a nationalized bank for a period of three years. Be it clarified if the earlier awarded sum has been deposited, the differential sum shall be deposited within the stipulated time as mentioned hereinabove and the disbursement shall take place accordingly. | 1[ds]27. Presently to the grant of compensation on other scores. It is noticeable that the High Court has reduced the additional medical expenses from Rs.2,00,000/- to Rs.50,000/-. In our considered opinion, the same is not correct as there is ample evidence on record as regards the necessity for treatment in future. It is demonstrable that pedicle screws were passed into pedicles of D11 vertebra; pedicle screws were passed into pedicles of L1 vertebra; and two screws on left thigh were connected using a rod each. That may be required to be removed or scanned from time to time depending upon other aspects. That apart, there is persistent pain and as medically advised physiotherapy is necessary and hence, continuous treatment has to be availed of. Thus, the High Court was not justified in reducing the said amount.The High Court has deleted the additional transport charges. We are disposed to think that while availing treatment the said expenses would be imperative. Hence, there was no justification to reduce the same and, accordingly, we restore it.30. It is perceptible that the High Court has deleted the amount awarded under the head of pain and suffering by family members of the claimant and the amount granted towards loss of marital life. There is no iota of evidence with regard to loss of marital life, hence, we do not find any error in the said deletion. As far as grant of compensation on the score of pain and suffering suffered by the family members of claimant is concerned, the same is not permissible and, accordingly, we hold that that has been correctly deleted.31. The High Court has deleted an amount of Rs.3,00,000/- and a sum of Rs.2,00,000/- towards mental agony and inability on the part of the claimant to participate in public functions respectively. We have already determined Rs.2,00,000/- under the heading of pain and suffering already suffered and to be suffered and Rs.2,50,000/- under the heading of permanent disability and hence, no different sum need be awarded under the heading of mental agony. As far as participation in public functions is concerned, there is no evidence in that regard and, therefore, we are disposed to think that the finding of the High Court on that score is totally justified and does not call for any interference.32. Calculated on the aforesaid base, the compensation would be payable on the headings, namely, transport charges, extra-nourishment, medical expenses, additional medical expenses, additional transport charges, pain and suffering,capacity and permanent disability and the amount on the aforesaid scores would be, in toto, Rs.13,48,000/-. The said amount shall carry interest at the rate of 7.5% from the date of application till the date of payment. The same shall be deposited before the tribunal within a period of two months and the tribunal shall disburse 50% of the amount in favour of the claimant and the rest of the amount shall be deposited in a nationalized bank for a period of three years. Be it clarified if the earlier awarded sum has been deposited, the differential sum shall be deposited within the stipulated time as mentioned hereinabove and the disbursement shall take place accordingly. | 1 | 5,708 | 581 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
of earning capacity as a result of the permanent disability would be approximately the same as the percentage of permanent disability in which case, of course, the court or tribunal would adopt the said percentage for determination of compensation. To arrive at the said conclusion reliance was placed on Arvind Kumar Mishra (supra) and Yadav Kumar (supra). 26. In the case at hand the High Court has determined the loss of earning capacity on the base of multiplier method and reduced the quantum awarded by the tribunal from Rs.5,00,000/- to Rs.4,68,000/-. Applying the ratio in Yadav Kumar (supra) and Arvind Kumar Mishra (supra) and also Raj Kumar (supra) and regard being had to the serious nature of injury we do not find any error in the said method of calculation and, accordingly, we uphold the method of computation as well as the quantum. 27. Presently to the grant of compensation on other scores. It is noticeable that the High Court has reduced the additional medical expenses from Rs.2,00,000/- to Rs.50,000/-. In our considered opinion, the same is not correct as there is ample evidence on record as regards the necessity for treatment in future. It is demonstrable that pedicle screws were passed into pedicles of D11 vertebra; pedicle screws were passed into pedicles of L1 vertebra; and two screws on left thigh were connected using a rod each. That may be required to be removed or scanned from time to time depending upon other aspects. That apart, there is persistent pain and as medically advised physiotherapy is necessary and hence, continuous treatment has to be availed of. Thus, the High Court was not justified in reducing the said amount. 28. The High Court has maintained the award in respect of transport charges, extra nourishment, medical expenses and, accordingly, they are maintained. It has enhanced the award from Rs.2,00,000/- to Rs.2,50,000 on the head of pain and suffering, but has deleted the amount awarded on permanent disability from the total compensation awarded by the tribunal by relying on the decision in Cholan Roadways Corporation Ltd. (supra). As has been stated earlier, the said decision has been considered in B. Kothandapani (supra) and is not accepted, and this Court has expressed the view that grant of compensation towards permanent disability is permissible. Regard been had to the totality of the facts and circumstances, we are inclined to think that compensation of Rs.2,50,000/- should be granted towards permanent disability and Rs.2,00,000/- towards pain and suffering. We have so held as the injury is of serious nature and under the heading of non-pecuniary damages compensation is awardable under the headings of pain and suffering and damages for loss of amenities of life on account of injury. In the case of R.D. Hattangadi (supra) this Court has granted compensation under two heads, namely, “pain and suffering” and “loss of amenities of life”. Quite apart from that compensation was granted towards future earnings. In Laxman v. Divisional Manager, Oriental Insurance Co. Ltd. and another [2012 ACJ 191 ] it has been ruled thus: - “The ratio of the above noted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earnings and victim’s inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.” Thus, the deletion by the High Court was not justified. However, we have restricted to the amount as stated hereinbefore. 29. The High Court has deleted the additional transport charges. We are disposed to think that while availing treatment the said expenses would be imperative. Hence, there was no justification to reduce the same and, accordingly, we restore it.30. It is perceptible that the High Court has deleted the amount awarded under the head of pain and suffering by family members of the claimant and the amount granted towards loss of marital life. There is no iota of evidence with regard to loss of marital life, hence, we do not find any error in the said deletion. As far as grant of compensation on the score of pain and suffering suffered by the family members of claimant is concerned, the same is not permissible and, accordingly, we hold that that has been correctly deleted.31. The High Court has deleted an amount of Rs.3,00,000/- and a sum of Rs.2,00,000/- towards mental agony and inability on the part of the claimant to participate in public functions respectively. We have already determined Rs.2,00,000/- under the heading of pain and suffering already suffered and to be suffered and Rs.2,50,000/- under the heading of permanent disability and hence, no different sum need be awarded under the heading of mental agony. As far as participation in public functions is concerned, there is no evidence in that regard and, therefore, we are disposed to think that the finding of the High Court on that score is totally justified and does not call for any interference.32. Calculated on the aforesaid base, the compensation would be payable on the headings, namely, transport charges, extra-nourishment, medical expenses, additional medical expenses, additional transport charges, pain and suffering, loss of earning capacity and permanent disability and the amount on the aforesaid scores would be, in toto, Rs.13,48,000/-. The said amount shall carry interest at the rate of 7.5% from the date of application till the date of payment. The same shall be deposited before the tribunal within a period of two months and the tribunal shall disburse 50% of the amount in favour of the claimant and the rest of the amount shall be deposited in a nationalized bank for a period of three years. Be it clarified if the earlier awarded sum has been deposited, the differential sum shall be deposited within the stipulated time as mentioned hereinabove and the disbursement shall take place accordingly.
### Response:
1
### Explanation:
27. Presently to the grant of compensation on other scores. It is noticeable that the High Court has reduced the additional medical expenses from Rs.2,00,000/- to Rs.50,000/-. In our considered opinion, the same is not correct as there is ample evidence on record as regards the necessity for treatment in future. It is demonstrable that pedicle screws were passed into pedicles of D11 vertebra; pedicle screws were passed into pedicles of L1 vertebra; and two screws on left thigh were connected using a rod each. That may be required to be removed or scanned from time to time depending upon other aspects. That apart, there is persistent pain and as medically advised physiotherapy is necessary and hence, continuous treatment has to be availed of. Thus, the High Court was not justified in reducing the said amount.The High Court has deleted the additional transport charges. We are disposed to think that while availing treatment the said expenses would be imperative. Hence, there was no justification to reduce the same and, accordingly, we restore it.30. It is perceptible that the High Court has deleted the amount awarded under the head of pain and suffering by family members of the claimant and the amount granted towards loss of marital life. There is no iota of evidence with regard to loss of marital life, hence, we do not find any error in the said deletion. As far as grant of compensation on the score of pain and suffering suffered by the family members of claimant is concerned, the same is not permissible and, accordingly, we hold that that has been correctly deleted.31. The High Court has deleted an amount of Rs.3,00,000/- and a sum of Rs.2,00,000/- towards mental agony and inability on the part of the claimant to participate in public functions respectively. We have already determined Rs.2,00,000/- under the heading of pain and suffering already suffered and to be suffered and Rs.2,50,000/- under the heading of permanent disability and hence, no different sum need be awarded under the heading of mental agony. As far as participation in public functions is concerned, there is no evidence in that regard and, therefore, we are disposed to think that the finding of the High Court on that score is totally justified and does not call for any interference.32. Calculated on the aforesaid base, the compensation would be payable on the headings, namely, transport charges, extra-nourishment, medical expenses, additional medical expenses, additional transport charges, pain and suffering,capacity and permanent disability and the amount on the aforesaid scores would be, in toto, Rs.13,48,000/-. The said amount shall carry interest at the rate of 7.5% from the date of application till the date of payment. The same shall be deposited before the tribunal within a period of two months and the tribunal shall disburse 50% of the amount in favour of the claimant and the rest of the amount shall be deposited in a nationalized bank for a period of three years. Be it clarified if the earlier awarded sum has been deposited, the differential sum shall be deposited within the stipulated time as mentioned hereinabove and the disbursement shall take place accordingly.
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Mohammad Raofuddin Vs. The Land Acquisition Officer | adjoining property towhom it may have somevery special advantage". 12. Thus, comparable sale instances of similar lands in the neighbourhood at or about the date of Notification under Section 4(1) of the Act are the best guide for determination of the market value of the land to arrive at a fair estimate of the amount of compensation payable to a land owner. Nevertheless, while ascertaining compensation, it is the duty of the Court to see that the compensation so determined is just and fair not merely to the individual whose property has been acquired but also to the public which is to pay for it. 13. The next question is as to the scope of interference by this Court in an award granting compensation. The scope of interference by this Court was delineated by the decision in Kamta Prasad Singh Vs. State of Bihar ((1976) 3 SCC 772 ) wherein this Court held that there was an element of guesswork inherent in most cases involving determination of the market value of the acquired land. If the judgment of the High Court revealed that it had taken into consideration the relevant factors prescribed by the Act, in appeal under Article 133 of the Constitution of India, assessment of market value thus made should not be disturbed by this Court. 14. The following observations of this Court in Food Corporation of India through its District Manager, Faridkot, Punjab & Ors. Vs. Makhan Singh and Anr. ((1992) 3 SCC 67 ) are quite apposite: "This Court as the last Court of appeal, will ordinarily not interfere in an award granting compensation unless there is something to show not merely that on the balance of evidence it is possible to reach a different conclusion, but that the judgment cannot be supported by reason of a wrong application of principle or because some important point affecting valuation has been overlooked or misapplied. Besides, generally speaking, the appellate court interferes not when the judgment under appeal is not right but only when it is shown to be wrong. See in this connection, The Dollar Company, Madras v. Collector of Madras, (1975) 2 SCC 730. Added thereto are other rules of prudence that the courts do not treat at par land situated on the frontage having special advantage and the land situated in the interior undeveloped area, or to compare smaller plots fetching better price with large tracts of land. See in this connection Periyar and Pareekanni Rubbers Ltd. v. State of Kerala, (1991) 4 SCC 195 : AIR 1990 SC 2192 ." 15. Therefore, the scope of interference in such matters is very limited and it is only in cases where it is found that the authorities below have either applied wrong principles or have omitted to take into consideration some important point affecting valuation, that this Court can interfere.16. Bearing these principles in mind, we may now advert to the facts of the present case.17. In the instant case before the Reference Court, the appellant had examined 4 witnesses including himself as PW-1. In support of his claim, he brought on record Ex. A.1 to A.8. However, presently we are required to consider Ex. A.6, the judgment of Subordinate Judge, Medak in O.P. No.112 of 1987 dated 25th April, 1991, fixing the rate of compensation for the land, stated to be contiguous to the land of the appellant, at Rs.18/- per square yard. Ex. A.7 is the certified copy of the decree in the said original petition. As is clear from its afore- extracted order, the High Court relied on its decision in A.S. No.2336 of 1998 on the ground that the land in question in the said suit was acquired vide Notification under Section 4 of the Act dated 4th January, 1987; the area of the land was 3 acres 9 guntas; the land was situated in the same village and was acquired for the same very public purpose of construction of Singnoor project as in the present case. The High Court noted that the Notification under Section 4 of the Act in the case of the appellant having been published within 6 months of the date of Notification in the afore-mentioned suit i.e. 15th July, 1987, it was not possible and permissible to take a different view other than the one taken in the said suit. While discarding Exs. A.6 and A.7, the Court has noted that the lands, subject matter of that acquisition, were not situated in the same village. 18. Therefore, the question for consideration is whether in the light of the said finding of the High Court, it could be said that the High Court has applied a wrong principle of law or has taken into consideration irrelevant material, warranting interference by this Court. Having gone through the evidence on record, we find it difficult to accept the stand of the appellant that the High Court should have relied on Ex. A.6 instead of its earlier decision in A.S. No.2336 of 1998. It may be true that in the absence of the instance relied upon by the High Court, Ex. A.6 could be taken into consideration as one of the comparable sale instances but at the same time reliance on its earlier judgment in respect of a land situated in the same village, acquired only six months ago, could not be said to be an irrelevant factor affecting the determination of market value/compensation in respect of the land of the appellant. As observed in Pal Singhs case (supra), said judgment is a valid instance from which the market value of the subject land could be deduced. Merely because a different conclusion could be possible on two sets of sale/acquisition instances, in our judgment, is no ground to interfere with the award of the High Court when it has taken into consideration an instance which is more closer to appellants land in respect of the date of acquisition; happened to be in the same village and acquired for the same purpose. | 0[ds]15. Therefore, the scope of interference in such matters is very limited and it is only in cases where it is found that the authorities below have either applied wrong principles or have omitted to take into consideration some important point affecting valuation, that this Court can interfere.16. Bearing these principles in mind, we may now advert to the facts of the present case.17. In the instant case before the Reference Court, the appellant had examined 4 witnesses including himself asIn support of his claim, he brought on record Ex. A.1 to A.8. However, presently we are required to consider Ex. A.6, the judgment of Subordinate Judge, Medak in O.P. No.112 of 1987 dated 25th April, 1991, fixing the rate of compensation for the land, stated to be contiguous to the land of the appellant, at Rs.18/per square yard. Ex. A.7 is the certified copy of the decree in the said original petition. As is clear from its aforeextracted order, the High Court relied on its decision in A.S. No.2336 of 1998 on the ground that the land in question in the said suit was acquired vide Notification under Section 4 of the Act dated 4th January, 1987; the area of the land was 3 acres 9 guntas; the land was situated in the same village and was acquired for the same very public purpose of construction of Singnoor project as in the present case. The High Court noted that the Notification under Section 4 of the Act in the case of the appellant having been published within 6 months of the date of Notification in thesuit i.e. 15th July, 1987, it was not possible and permissible to take a different view other than the one taken in the said suit. While discarding Exs. A.6 and A.7, the Court has noted that the lands, subject matter of that acquisition, were not situated in the samegone through the evidence on record, we find it difficult to accept the stand of the appellant that the High Court should have relied on Ex. A.6 instead of its earlier decision in A.S. No.2336 of 1998. It may be true that in the absence of the instance relied upon by the High Court, Ex. A.6 could be taken into consideration as one of the comparable sale instances but at the same time reliance on its earlier judgment in respect of a land situated in the same village, acquired only six months ago, could not be said to be an irrelevant factor affecting the determination of market value/compensation in respect of the land of the appellant. As observed in Pal Singhs case (supra), said judgment is a valid instance from which the market value of the subject land could be deduced. Merely because a different conclusion could be possible on two sets of sale/acquisition instances, in our judgment, is no ground to interfere with the award of the High Court when it has taken into consideration an instance which is more closer to appellants land in respect of the date of acquisition; happened to be in the same village and acquired for the same purpose. | 0 | 3,545 | 574 | ### 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:
adjoining property towhom it may have somevery special advantage". 12. Thus, comparable sale instances of similar lands in the neighbourhood at or about the date of Notification under Section 4(1) of the Act are the best guide for determination of the market value of the land to arrive at a fair estimate of the amount of compensation payable to a land owner. Nevertheless, while ascertaining compensation, it is the duty of the Court to see that the compensation so determined is just and fair not merely to the individual whose property has been acquired but also to the public which is to pay for it. 13. The next question is as to the scope of interference by this Court in an award granting compensation. The scope of interference by this Court was delineated by the decision in Kamta Prasad Singh Vs. State of Bihar ((1976) 3 SCC 772 ) wherein this Court held that there was an element of guesswork inherent in most cases involving determination of the market value of the acquired land. If the judgment of the High Court revealed that it had taken into consideration the relevant factors prescribed by the Act, in appeal under Article 133 of the Constitution of India, assessment of market value thus made should not be disturbed by this Court. 14. The following observations of this Court in Food Corporation of India through its District Manager, Faridkot, Punjab & Ors. Vs. Makhan Singh and Anr. ((1992) 3 SCC 67 ) are quite apposite: "This Court as the last Court of appeal, will ordinarily not interfere in an award granting compensation unless there is something to show not merely that on the balance of evidence it is possible to reach a different conclusion, but that the judgment cannot be supported by reason of a wrong application of principle or because some important point affecting valuation has been overlooked or misapplied. Besides, generally speaking, the appellate court interferes not when the judgment under appeal is not right but only when it is shown to be wrong. See in this connection, The Dollar Company, Madras v. Collector of Madras, (1975) 2 SCC 730. Added thereto are other rules of prudence that the courts do not treat at par land situated on the frontage having special advantage and the land situated in the interior undeveloped area, or to compare smaller plots fetching better price with large tracts of land. See in this connection Periyar and Pareekanni Rubbers Ltd. v. State of Kerala, (1991) 4 SCC 195 : AIR 1990 SC 2192 ." 15. Therefore, the scope of interference in such matters is very limited and it is only in cases where it is found that the authorities below have either applied wrong principles or have omitted to take into consideration some important point affecting valuation, that this Court can interfere.16. Bearing these principles in mind, we may now advert to the facts of the present case.17. In the instant case before the Reference Court, the appellant had examined 4 witnesses including himself as PW-1. In support of his claim, he brought on record Ex. A.1 to A.8. However, presently we are required to consider Ex. A.6, the judgment of Subordinate Judge, Medak in O.P. No.112 of 1987 dated 25th April, 1991, fixing the rate of compensation for the land, stated to be contiguous to the land of the appellant, at Rs.18/- per square yard. Ex. A.7 is the certified copy of the decree in the said original petition. As is clear from its afore- extracted order, the High Court relied on its decision in A.S. No.2336 of 1998 on the ground that the land in question in the said suit was acquired vide Notification under Section 4 of the Act dated 4th January, 1987; the area of the land was 3 acres 9 guntas; the land was situated in the same village and was acquired for the same very public purpose of construction of Singnoor project as in the present case. The High Court noted that the Notification under Section 4 of the Act in the case of the appellant having been published within 6 months of the date of Notification in the afore-mentioned suit i.e. 15th July, 1987, it was not possible and permissible to take a different view other than the one taken in the said suit. While discarding Exs. A.6 and A.7, the Court has noted that the lands, subject matter of that acquisition, were not situated in the same village. 18. Therefore, the question for consideration is whether in the light of the said finding of the High Court, it could be said that the High Court has applied a wrong principle of law or has taken into consideration irrelevant material, warranting interference by this Court. Having gone through the evidence on record, we find it difficult to accept the stand of the appellant that the High Court should have relied on Ex. A.6 instead of its earlier decision in A.S. No.2336 of 1998. It may be true that in the absence of the instance relied upon by the High Court, Ex. A.6 could be taken into consideration as one of the comparable sale instances but at the same time reliance on its earlier judgment in respect of a land situated in the same village, acquired only six months ago, could not be said to be an irrelevant factor affecting the determination of market value/compensation in respect of the land of the appellant. As observed in Pal Singhs case (supra), said judgment is a valid instance from which the market value of the subject land could be deduced. Merely because a different conclusion could be possible on two sets of sale/acquisition instances, in our judgment, is no ground to interfere with the award of the High Court when it has taken into consideration an instance which is more closer to appellants land in respect of the date of acquisition; happened to be in the same village and acquired for the same purpose.
### Response:
0
### Explanation:
15. Therefore, the scope of interference in such matters is very limited and it is only in cases where it is found that the authorities below have either applied wrong principles or have omitted to take into consideration some important point affecting valuation, that this Court can interfere.16. Bearing these principles in mind, we may now advert to the facts of the present case.17. In the instant case before the Reference Court, the appellant had examined 4 witnesses including himself asIn support of his claim, he brought on record Ex. A.1 to A.8. However, presently we are required to consider Ex. A.6, the judgment of Subordinate Judge, Medak in O.P. No.112 of 1987 dated 25th April, 1991, fixing the rate of compensation for the land, stated to be contiguous to the land of the appellant, at Rs.18/per square yard. Ex. A.7 is the certified copy of the decree in the said original petition. As is clear from its aforeextracted order, the High Court relied on its decision in A.S. No.2336 of 1998 on the ground that the land in question in the said suit was acquired vide Notification under Section 4 of the Act dated 4th January, 1987; the area of the land was 3 acres 9 guntas; the land was situated in the same village and was acquired for the same very public purpose of construction of Singnoor project as in the present case. The High Court noted that the Notification under Section 4 of the Act in the case of the appellant having been published within 6 months of the date of Notification in thesuit i.e. 15th July, 1987, it was not possible and permissible to take a different view other than the one taken in the said suit. While discarding Exs. A.6 and A.7, the Court has noted that the lands, subject matter of that acquisition, were not situated in the samegone through the evidence on record, we find it difficult to accept the stand of the appellant that the High Court should have relied on Ex. A.6 instead of its earlier decision in A.S. No.2336 of 1998. It may be true that in the absence of the instance relied upon by the High Court, Ex. A.6 could be taken into consideration as one of the comparable sale instances but at the same time reliance on its earlier judgment in respect of a land situated in the same village, acquired only six months ago, could not be said to be an irrelevant factor affecting the determination of market value/compensation in respect of the land of the appellant. As observed in Pal Singhs case (supra), said judgment is a valid instance from which the market value of the subject land could be deduced. Merely because a different conclusion could be possible on two sets of sale/acquisition instances, in our judgment, is no ground to interfere with the award of the High Court when it has taken into consideration an instance which is more closer to appellants land in respect of the date of acquisition; happened to be in the same village and acquired for the same purpose.
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State of Orissa and Another Vs. Gobinda Rath | 181 mds. 36 1/4 srs. of fish to dealers belonging to other States and 19 mds. 3 1/2 srs. to local dealers. It is further ascertained that the sale price of the fish was Rs. 45 per maund during the quarter under assessment. On the basis of the above data, I determine his gross turnover at Rs. 9, 044-11-6 or Rs. 9, 045. Out of this sum, he is allowed Rs. 181-0-0 under section 5(2)(b). His taxable turnover is thus determined at Rs. 8, 864-0-0 on which he should pay tax @ 0-0-3 pies in the rupee. Tax payable comes to Rs. 138-8-0.The dealers failure to apply for registration in time is considered to be wilful especially when he happens to be a dealer of Balugaon, one of the chief business centres of this Circle where almost all dealers have got themselves registered in time. I, therefore, direct that he should pay Rs. 50 by way of penalty for his default in this respect."Similar orders were passed for the other three quarters. There is no dispute about the local sale of fish in Orissa. The dispute is only about the fish exported to Calcutta. The respondent appealed against the assessment orders and contended that the fish exported to Calcutta was not sold in Orissa and he was not liable to tax under the Orissa Sales Tax Act, 1947 (Orissa Act XIV of 1947) in respect of such sales. The appellate authority did not accept the contention of the respondent. The respondent then made an application in revision and raised the same contention that the fish exported to Calcutta was not sold in Orissa. The Collector of Commercial Taxes rejected the application.The respondent then moved the High Court by means of a writ petition. The High Court held that the sales in the quarter after the coming into force of the Constitution were clearly outside Orissa, as the fish exported to Calcutta was delivered as a direct result of the sale for the purpose of consumption in the delivery State. The High Court referred to the decision of this Court in The State of Bombay and Another v. The United Motors (India) Ltd. and Others ([1953] 4 S.T.C. 133; [1953] S.C.R. 1069). As to the quarters prior to the Constitution, the High Court held that its decision in another case, that of Messrs Chakobhai Ghelabhai ([1956] 7 S.T.C. 36; I.L.R. (1955) Cuttack 529), applied and by reason of the repeal of the second proviso to section 2(g) of the Orissa Sales Tax Act, 1947, by the Adaptation of Laws Order, 1950, the respondent was not liable to sales tax. Accordingly, the High Court allowed the writ petition and quashed the assessment orders.The State of Orissa and the Sales Tax Officer, Puri, have preferred this appeal from the judgment and order of the High Court dated January 10, 1956, on a certificate granted by the High Court.This appeal was heard immediately after Appeal No. 710 of 1957 in which we had occasion to consider the correctness of the decision of the Orissa High Court in the case of Chakobhai Ghelabhai. By a judgment pronounced today we have allowed Appeal No. 710 of 1957 (Since reported as The State of Orissa and Another v. Chakobhai Ghelabhai and Co. [1960] 11 S.T.C. 716).Mr. N. C. Chatterjee appearing for the appellants has contended that the decision in Appeal No. 710 of 1957 will govern the assessment orders at least for the pre-Constitution period and they must be held to be good in this case. We are unable to agree. In Appeal No. 710 of 1957 we proceeded on an admission made on behalf of the assessee that the sales under consideration there were completed in Orissa, and we held that in view of that admission it was unnecessary to consider the second proviso to section 2(g) of the Orissa Sales Tax Act, 1947, or the Adaptation of Laws Order, 1950.What is the position in the present case ? On the findings arrived at by the assessing authorities there were no sales in Orissa, either under section 2(g) or the second proviso thereto. The Assistant Collector of Sales Tax found as follows :"He has evidently exported fish to purchasing dealers at Calcutta whom he called his commission agents. The Calcutta dealers regularly sent him advances against fish exported to them for sale. The appellant purchased fish in this State and consigned the same by rail at railway stations situated within this State. The purchasing dealers took delivery of the fish at the other end, stocked them in their godowns and ultimately sold them to third parties and remitted the value of the goods to the appellant less advances paid and godown and other charges."It is obvious from what has been quoted above that the Assistant Collector thought that the purchase of fish by the respondent in Orissa was enough to make him liable. That is clearly not so. The respondent was not asked to pay a purchase tax; he was asked to pay a tax on sales made in Orissa. The Assistant Collector found that the respondents agents sold the fish in Calcutta and remitted the price of the fish less advances paid and godown and other charges. This finding is tantamount to holding that the sales took place in Calcutta.Mr. Chatterjee drew our attention to an admission alleged to have been made on behalf of the respondent. It appears that the respondent admitted his liability to pay tax from April 1, 1949. This admission, however, related to a different question altogether, viz., whether the turnover of the respondent exceeded Rs. 5, 000 in the previous year so as to make him liable from April 1, 1949. The admission had no bearing on the question as to where the sales of the exported fish took place.We hold that on the findings given by the assessing authorities, the respondent was not liable to tax for any of the four quarters under the Orissa Sales Tax Act, 1947. | 0[ds]We are unable to agree. In Appeal No. 710 of 1957 we proceeded on an admission made on behalf of the assessee that the sales under consideration there were completed in Orissa, and we held that in view of that admission it was unnecessary to consider the second proviso to section 2(g) of the Orissa Sales Tax Act, 1947, or the Adaptation of Laws Order,the findings arrived at by the assessing authorities there were no sales in Orissa, either under section 2(g) or the second provisois obvious from what has been quoted above that the Assistant Collector thought that the purchase of fish by the respondent in Orissa was enough to make him liable. That is clearly not so. The respondent was not asked to pay a purchase tax; he was asked to pay a tax on sales made in Orissa. The Assistant Collector found that the respondents agents sold the fish in Calcutta and remitted the price of the fish less advances paid and godown and other charges. This finding is tantamount to holding that the sales took place inadmission, however, related to a different question altogether, viz., whether the turnover of the respondent exceeded Rs. 5, 000 in the previous year so as to make him liable from April 1, 1949. The admission had no bearing on the question as to where the sales of the exported fish took place.We hold that on the findings given by the assessing authorities, the respondent was not liable to tax for any of the four quarters under the Orissa Sales Tax Act, 1947. | 0 | 1,376 | 296 | ### 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:
181 mds. 36 1/4 srs. of fish to dealers belonging to other States and 19 mds. 3 1/2 srs. to local dealers. It is further ascertained that the sale price of the fish was Rs. 45 per maund during the quarter under assessment. On the basis of the above data, I determine his gross turnover at Rs. 9, 044-11-6 or Rs. 9, 045. Out of this sum, he is allowed Rs. 181-0-0 under section 5(2)(b). His taxable turnover is thus determined at Rs. 8, 864-0-0 on which he should pay tax @ 0-0-3 pies in the rupee. Tax payable comes to Rs. 138-8-0.The dealers failure to apply for registration in time is considered to be wilful especially when he happens to be a dealer of Balugaon, one of the chief business centres of this Circle where almost all dealers have got themselves registered in time. I, therefore, direct that he should pay Rs. 50 by way of penalty for his default in this respect."Similar orders were passed for the other three quarters. There is no dispute about the local sale of fish in Orissa. The dispute is only about the fish exported to Calcutta. The respondent appealed against the assessment orders and contended that the fish exported to Calcutta was not sold in Orissa and he was not liable to tax under the Orissa Sales Tax Act, 1947 (Orissa Act XIV of 1947) in respect of such sales. The appellate authority did not accept the contention of the respondent. The respondent then made an application in revision and raised the same contention that the fish exported to Calcutta was not sold in Orissa. The Collector of Commercial Taxes rejected the application.The respondent then moved the High Court by means of a writ petition. The High Court held that the sales in the quarter after the coming into force of the Constitution were clearly outside Orissa, as the fish exported to Calcutta was delivered as a direct result of the sale for the purpose of consumption in the delivery State. The High Court referred to the decision of this Court in The State of Bombay and Another v. The United Motors (India) Ltd. and Others ([1953] 4 S.T.C. 133; [1953] S.C.R. 1069). As to the quarters prior to the Constitution, the High Court held that its decision in another case, that of Messrs Chakobhai Ghelabhai ([1956] 7 S.T.C. 36; I.L.R. (1955) Cuttack 529), applied and by reason of the repeal of the second proviso to section 2(g) of the Orissa Sales Tax Act, 1947, by the Adaptation of Laws Order, 1950, the respondent was not liable to sales tax. Accordingly, the High Court allowed the writ petition and quashed the assessment orders.The State of Orissa and the Sales Tax Officer, Puri, have preferred this appeal from the judgment and order of the High Court dated January 10, 1956, on a certificate granted by the High Court.This appeal was heard immediately after Appeal No. 710 of 1957 in which we had occasion to consider the correctness of the decision of the Orissa High Court in the case of Chakobhai Ghelabhai. By a judgment pronounced today we have allowed Appeal No. 710 of 1957 (Since reported as The State of Orissa and Another v. Chakobhai Ghelabhai and Co. [1960] 11 S.T.C. 716).Mr. N. C. Chatterjee appearing for the appellants has contended that the decision in Appeal No. 710 of 1957 will govern the assessment orders at least for the pre-Constitution period and they must be held to be good in this case. We are unable to agree. In Appeal No. 710 of 1957 we proceeded on an admission made on behalf of the assessee that the sales under consideration there were completed in Orissa, and we held that in view of that admission it was unnecessary to consider the second proviso to section 2(g) of the Orissa Sales Tax Act, 1947, or the Adaptation of Laws Order, 1950.What is the position in the present case ? On the findings arrived at by the assessing authorities there were no sales in Orissa, either under section 2(g) or the second proviso thereto. The Assistant Collector of Sales Tax found as follows :"He has evidently exported fish to purchasing dealers at Calcutta whom he called his commission agents. The Calcutta dealers regularly sent him advances against fish exported to them for sale. The appellant purchased fish in this State and consigned the same by rail at railway stations situated within this State. The purchasing dealers took delivery of the fish at the other end, stocked them in their godowns and ultimately sold them to third parties and remitted the value of the goods to the appellant less advances paid and godown and other charges."It is obvious from what has been quoted above that the Assistant Collector thought that the purchase of fish by the respondent in Orissa was enough to make him liable. That is clearly not so. The respondent was not asked to pay a purchase tax; he was asked to pay a tax on sales made in Orissa. The Assistant Collector found that the respondents agents sold the fish in Calcutta and remitted the price of the fish less advances paid and godown and other charges. This finding is tantamount to holding that the sales took place in Calcutta.Mr. Chatterjee drew our attention to an admission alleged to have been made on behalf of the respondent. It appears that the respondent admitted his liability to pay tax from April 1, 1949. This admission, however, related to a different question altogether, viz., whether the turnover of the respondent exceeded Rs. 5, 000 in the previous year so as to make him liable from April 1, 1949. The admission had no bearing on the question as to where the sales of the exported fish took place.We hold that on the findings given by the assessing authorities, the respondent was not liable to tax for any of the four quarters under the Orissa Sales Tax Act, 1947.
### Response:
0
### Explanation:
We are unable to agree. In Appeal No. 710 of 1957 we proceeded on an admission made on behalf of the assessee that the sales under consideration there were completed in Orissa, and we held that in view of that admission it was unnecessary to consider the second proviso to section 2(g) of the Orissa Sales Tax Act, 1947, or the Adaptation of Laws Order,the findings arrived at by the assessing authorities there were no sales in Orissa, either under section 2(g) or the second provisois obvious from what has been quoted above that the Assistant Collector thought that the purchase of fish by the respondent in Orissa was enough to make him liable. That is clearly not so. The respondent was not asked to pay a purchase tax; he was asked to pay a tax on sales made in Orissa. The Assistant Collector found that the respondents agents sold the fish in Calcutta and remitted the price of the fish less advances paid and godown and other charges. This finding is tantamount to holding that the sales took place inadmission, however, related to a different question altogether, viz., whether the turnover of the respondent exceeded Rs. 5, 000 in the previous year so as to make him liable from April 1, 1949. The admission had no bearing on the question as to where the sales of the exported fish took place.We hold that on the findings given by the assessing authorities, the respondent was not liable to tax for any of the four quarters under the Orissa Sales Tax Act, 1947.
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Parimisetti Seetharamamma Vs. Commissioner Of Income-Tax, Hyderabad | Sita Devi, and that she was described as the Private Secretary to Sita Devi in a "bill" issued by the Bombay garage Ltd., and that in any event it was for the appellant to prove her case of gift. The Tribunal then observed that the word "income" is not precisely defined in the Act and the Act seeks to bring to tax all income, profits and gains from whatever source derived and inasmuch as receipt of amounts and jewellery in question had been admitted it was for the appellant to establish that it was not liable to be taxed under the Act. Observing then that the appellant had not placed "all the cards on the table which will go to show the real nature of the receipt of the amounts and the jewellery and had declined to produce the correspondence which passed between her and Sita Devi, but merely offered to produce the correspondence which passed between her and Sita Devi, but merely offered to produce certain extracts from the letters which the Income-tax Officer refused to admit, it was open to the Income-tax authorities to raise an inference that the receipts were income. when ample opportunity was given to the assessee to explain the nature of the receipts and since the appellant had not chosen to do so, she was not entitled to the exemption under S. 1(3) (vii).10. The conclusion of the Tribunal recorded on this process of reasoning was open to grave challenge in point of law. It does not appear that any serious attempt was made by the appellant to prove that the receipts under discussion were exempt from tax, because they were casual and of a non-recurring nature. The appellants case primarily was that the receipts were not taxable because they were not income chargeable to tax. The Tribunal rightly observed that the information collected by the Department from different sources which consisted of record of ex parte statements of certain persons about the relation between Sita Devi and the appellant, which they even declined to give in writing, could have not value in establishing the case of the Department. There remained two pieces of evidence on which the Tribunal relied - (i) admission made by the appellant that she acted as the local agent in Nuzvid for disbursing salary to servants of Sita Devi and (ii) in a "bill" issued by the Bombay Garage Ltd. the appellant was described as "Private Secretary to Princess Sita Devi." But these circumstances could not establish that what was given to her by Sita Devi was remuneration for services rendered or to be rendered. Realizing this infirmity, the Tribunal observed that the burden of proving that the receipts were not income lay upon the appellant. The Tribunal did not infer that as remuneration for disbursing salary to Sita Devis servants she was given large amounts of money and jewellery. Description of the appellant in the cash-memo issued by the Bombay Garage Ltd. as "Private Secretary to Princess Sita Devi" could have no evidentiary value. It is not claimed that there was evidence on the record that this was the general repute of the appellant. Description of the appellant as Private Secretary of Sita Devi in a stray cash-memo issued by a third party about the source of whose knowledge there is not an iota of evidence, could not evidence a relationship of master and servant: mush less could it prove that what was given by Sita Devi to the appellant was remuneration for service rendered. The conclusion of the Tribunal is therefore based on matters which may at the highest create some suspicion, and upon its view that the burden of proving that the receipts were not taxable lay upon the appellant. But a conclusion recorded by the Tribunal by wrongly throwing the burden of proof upon the assessee cannot be regarded as binding upon the High Court in a reference under S. 66 of the Income-tax Act.11. Counsel for the Commissioner contended that beside the two circumstance relied upon by the Tribunal there were other circumstances on which the conclusion of the Tribunal could be sustained. These circumstances, counsel submitted, are on the record and must have weighed with the Tribunal in arriving at its finding that the receipts by the appellant were of the nature of income. These were (a) that the appellant belonged to a family of Dasis who are generally employed in the ruling family of Pittapuram in a menial capacity (b) that the appellant was receiving a salary of Rs. 8 per month from the Maharaja of Pittapuram; (c) that the appellant was associted with Sita Devi for at least 8 years before the earliest year of account relevant in these appeals; (d) that large amounts in cash and also jewellery were given to the appellant from time to time after Sita Devi married the Gaekwad of Baroda, (e) that the gifts commenced immediately after Sita Devi married the Gaekwad of Baroda; (f) that the appellant assisted Sita Devi in securing divorce from the Yuvaraja of Vuyyur and in getting married to the Gaekwad of Baroad; (g) that the appellant lived with Sita Devi in London in the year 1949-50 and also at Baroda; and (h) that similar gifts were given to one Narsinghrao "associate of the appellant" and to the daughters of the appellants sisters. There is no evidence in support of (f), and the circumstances (a) to (c) and (g) cannot possibly lead to the conclusion that property of large value was given to the appellant by Sita Devi as remuneration for performance of service circumstance (h) is irrelevant.12. On the first part of the two questions it must be recorded that what the assessee received in the relevant years of account was not assessable to tax. It is unnecessary to record, as already obsered, a finding on the second branch of the question, viz. whether S. 34 of the Income-tax Act could properly be invoked in regard to those receipts. | 1[ds]9. In the view of the Income-tax Appellate Tribunal, in determining the question whether receipts by the appellants represented income liable to be brought to tax under the Income-tax Act, it could not be said that there were no materials justifying the Department in treating the assessee as being an employee of Sita Devi, for apart from the information the Department had collected from various sources, there were clear indications that the assesses was acting as the local agent of Sita Devi in Pittapuram for disbursing salary to various servants of Sita Devi, and that she was described as the Private Secretary to Sita Devi in a "bill" issued by the Bombay garage Ltd., and that in any event it was for the appellant to prove her case of gift. The Tribunal then observed that the word "income" is not precisely defined in the Act and the Act seeks to bring to tax all income, profits and gains from whatever source derived and inasmuch as receipt of amounts and jewellery in question had been admitted it was for the appellant to establish that it was not liable to be taxed under the Act. Observing then that the appellant had not placed "all the cards on the table which will go to show the real nature of the receipt of the amounts and the jewellery and had declined to produce the correspondence which passed between her and Sita Devi, but merely offered to produce the correspondence which passed between her and Sita Devi, but merely offered to produce certain extracts from the letters which the Income-tax Officer refused to admit, it was open to the Income-tax authorities to raise an inference that the receipts were income. when ample opportunity was given to the assessee to explain the nature of the receipts and since the appellant had not chosen to do so, she was not entitled to the exemption under S. 1(3) (vii).10. The conclusion of the Tribunal recorded on this process of reasoning was open to grave challenge in point of law. It does not appear that any serious attempt was made by the appellant to prove that the receipts under discussion were exempt from tax, because they were casual and of a non-recurring nature. The appellants case primarily was that the receipts were not taxable because they were not income chargeable to tax. The Tribunal rightly observed that the information collected by the Department from different sources which consisted of record of ex parte statements of certain persons about the relation between Sita Devi and the appellant, which they even declined to give in writing, could have not value in establishing the case of the Department. There remained two pieces of evidence on which the Tribunal relied - (i) admission made by the appellant that she acted as the local agent in Nuzvid for disbursing salary to servants of Sita Devi and (ii) in a "bill" issued by the Bombay Garage Ltd. the appellant was described as "Private Secretary to Princess Sita Devi." But these circumstances could not establish that what was given to her by Sita Devi was remuneration for services rendered or to be rendered. Realizing this infirmity, the Tribunal observed that the burden of proving that the receipts were not income lay upon the appellant. The Tribunal did not infer that as remuneration for disbursing salary to Sita Devis servants she was given large amounts of money and jewellery. Description of the appellant in the cash-memo issued by the Bombay Garage Ltd. as "Private Secretary to Princess Sita Devi" could have no evidentiary value. It is not claimed that there was evidence on the record that this was the general repute of the appellant. Description of the appellant as Private Secretary of Sita Devi in a stray cash-memo issued by a third party about the source of whose knowledge there is not an iota of evidence, could not evidence a relationship of master and servant: mush less could it prove that what was given by Sita Devi to the appellant was remuneration for service rendered. The conclusion of the Tribunal is therefore based on matters which may at the highest create some suspicion, and upon its view that the burden of proving that the receipts were not taxable lay upon the appellant. But a conclusion recorded by the Tribunal by wrongly throwing the burden of proof upon the assessee cannot be regarded as binding upon the High Court in a reference under S. 66 of the Income-tax Act.Counsel for the Commissioner contended that beside the two circumstance relied upon by the Tribunal there were other circumstances on which the conclusion of the Tribunal could be sustained. These circumstances, counsel submitted, are on the record and must have weighed with the Tribunal in arriving at its finding that the receipts by the appellant were of the nature of income. These were (a) that the appellant belonged to a family of Dasis who are generally employed in the ruling family of Pittapuram in a menial capacity (b) that the appellant was receiving a salary of Rs. 8 per month from the Maharaja of Pittapuram; (c) that the appellant was associted with Sita Devi for at least 8 years before the earliest year of account relevant in these appeals; (d) that large amounts in cash and also jewellery were given to the appellant from time to time after Sita Devi married the Gaekwad of Baroda, (e) that the gifts commenced immediately after Sita Devi married the Gaekwad of Baroda; (f) that the appellant assisted Sita Devi in securing divorce from the Yuvaraja of Vuyyur and in getting married to the Gaekwad of Baroad; (g) that the appellant lived with Sita Devi in London in the year 1949-50 and also at Baroda; and (h) that similar gifts were given to one Narsinghrao "associate of the appellant" and to the daughters of the appellants sisters. There is no evidence in support of (f), and the circumstances (a) to (c) and (g) cannot possibly lead to the conclusion that property of large value was given to the appellant by Sita Devi as remuneration for performance of service circumstance (h) is irrelevant.On the first part of the two questions it must be recorded that what the assessee received in the relevant years of account was not assessable to tax. It is unnecessary to record, as already obsered, a finding on the second branch of the question, viz. whether S. 34 of the Income-tax Act could properly be invoked in regard to those receipts.It is not necessary to consider whether theOfficer was competent to issue a notice under S. 34 of theAct for the years1, for in our view the property received by the appellant was not remuneration given to her by Sita Devi for services rendered or to be rendered by her. | 1 | 3,543 | 1,248 | ### Instruction:
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Sita Devi, and that she was described as the Private Secretary to Sita Devi in a "bill" issued by the Bombay garage Ltd., and that in any event it was for the appellant to prove her case of gift. The Tribunal then observed that the word "income" is not precisely defined in the Act and the Act seeks to bring to tax all income, profits and gains from whatever source derived and inasmuch as receipt of amounts and jewellery in question had been admitted it was for the appellant to establish that it was not liable to be taxed under the Act. Observing then that the appellant had not placed "all the cards on the table which will go to show the real nature of the receipt of the amounts and the jewellery and had declined to produce the correspondence which passed between her and Sita Devi, but merely offered to produce the correspondence which passed between her and Sita Devi, but merely offered to produce certain extracts from the letters which the Income-tax Officer refused to admit, it was open to the Income-tax authorities to raise an inference that the receipts were income. when ample opportunity was given to the assessee to explain the nature of the receipts and since the appellant had not chosen to do so, she was not entitled to the exemption under S. 1(3) (vii).10. The conclusion of the Tribunal recorded on this process of reasoning was open to grave challenge in point of law. It does not appear that any serious attempt was made by the appellant to prove that the receipts under discussion were exempt from tax, because they were casual and of a non-recurring nature. The appellants case primarily was that the receipts were not taxable because they were not income chargeable to tax. The Tribunal rightly observed that the information collected by the Department from different sources which consisted of record of ex parte statements of certain persons about the relation between Sita Devi and the appellant, which they even declined to give in writing, could have not value in establishing the case of the Department. There remained two pieces of evidence on which the Tribunal relied - (i) admission made by the appellant that she acted as the local agent in Nuzvid for disbursing salary to servants of Sita Devi and (ii) in a "bill" issued by the Bombay Garage Ltd. the appellant was described as "Private Secretary to Princess Sita Devi." But these circumstances could not establish that what was given to her by Sita Devi was remuneration for services rendered or to be rendered. Realizing this infirmity, the Tribunal observed that the burden of proving that the receipts were not income lay upon the appellant. The Tribunal did not infer that as remuneration for disbursing salary to Sita Devis servants she was given large amounts of money and jewellery. Description of the appellant in the cash-memo issued by the Bombay Garage Ltd. as "Private Secretary to Princess Sita Devi" could have no evidentiary value. It is not claimed that there was evidence on the record that this was the general repute of the appellant. Description of the appellant as Private Secretary of Sita Devi in a stray cash-memo issued by a third party about the source of whose knowledge there is not an iota of evidence, could not evidence a relationship of master and servant: mush less could it prove that what was given by Sita Devi to the appellant was remuneration for service rendered. The conclusion of the Tribunal is therefore based on matters which may at the highest create some suspicion, and upon its view that the burden of proving that the receipts were not taxable lay upon the appellant. But a conclusion recorded by the Tribunal by wrongly throwing the burden of proof upon the assessee cannot be regarded as binding upon the High Court in a reference under S. 66 of the Income-tax Act.11. Counsel for the Commissioner contended that beside the two circumstance relied upon by the Tribunal there were other circumstances on which the conclusion of the Tribunal could be sustained. These circumstances, counsel submitted, are on the record and must have weighed with the Tribunal in arriving at its finding that the receipts by the appellant were of the nature of income. These were (a) that the appellant belonged to a family of Dasis who are generally employed in the ruling family of Pittapuram in a menial capacity (b) that the appellant was receiving a salary of Rs. 8 per month from the Maharaja of Pittapuram; (c) that the appellant was associted with Sita Devi for at least 8 years before the earliest year of account relevant in these appeals; (d) that large amounts in cash and also jewellery were given to the appellant from time to time after Sita Devi married the Gaekwad of Baroda, (e) that the gifts commenced immediately after Sita Devi married the Gaekwad of Baroda; (f) that the appellant assisted Sita Devi in securing divorce from the Yuvaraja of Vuyyur and in getting married to the Gaekwad of Baroad; (g) that the appellant lived with Sita Devi in London in the year 1949-50 and also at Baroda; and (h) that similar gifts were given to one Narsinghrao "associate of the appellant" and to the daughters of the appellants sisters. There is no evidence in support of (f), and the circumstances (a) to (c) and (g) cannot possibly lead to the conclusion that property of large value was given to the appellant by Sita Devi as remuneration for performance of service circumstance (h) is irrelevant.12. On the first part of the two questions it must be recorded that what the assessee received in the relevant years of account was not assessable to tax. It is unnecessary to record, as already obsered, a finding on the second branch of the question, viz. whether S. 34 of the Income-tax Act could properly be invoked in regard to those receipts.
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is not precisely defined in the Act and the Act seeks to bring to tax all income, profits and gains from whatever source derived and inasmuch as receipt of amounts and jewellery in question had been admitted it was for the appellant to establish that it was not liable to be taxed under the Act. Observing then that the appellant had not placed "all the cards on the table which will go to show the real nature of the receipt of the amounts and the jewellery and had declined to produce the correspondence which passed between her and Sita Devi, but merely offered to produce the correspondence which passed between her and Sita Devi, but merely offered to produce certain extracts from the letters which the Income-tax Officer refused to admit, it was open to the Income-tax authorities to raise an inference that the receipts were income. when ample opportunity was given to the assessee to explain the nature of the receipts and since the appellant had not chosen to do so, she was not entitled to the exemption under S. 1(3) (vii).10. The conclusion of the Tribunal recorded on this process of reasoning was open to grave challenge in point of law. It does not appear that any serious attempt was made by the appellant to prove that the receipts under discussion were exempt from tax, because they were casual and of a non-recurring nature. The appellants case primarily was that the receipts were not taxable because they were not income chargeable to tax. The Tribunal rightly observed that the information collected by the Department from different sources which consisted of record of ex parte statements of certain persons about the relation between Sita Devi and the appellant, which they even declined to give in writing, could have not value in establishing the case of the Department. There remained two pieces of evidence on which the Tribunal relied - (i) admission made by the appellant that she acted as the local agent in Nuzvid for disbursing salary to servants of Sita Devi and (ii) in a "bill" issued by the Bombay Garage Ltd. the appellant was described as "Private Secretary to Princess Sita Devi." But these circumstances could not establish that what was given to her by Sita Devi was remuneration for services rendered or to be rendered. Realizing this infirmity, the Tribunal observed that the burden of proving that the receipts were not income lay upon the appellant. The Tribunal did not infer that as remuneration for disbursing salary to Sita Devis servants she was given large amounts of money and jewellery. Description of the appellant in the cash-memo issued by the Bombay Garage Ltd. as "Private Secretary to Princess Sita Devi" could have no evidentiary value. It is not claimed that there was evidence on the record that this was the general repute of the appellant. Description of the appellant as Private Secretary of Sita Devi in a stray cash-memo issued by a third party about the source of whose knowledge there is not an iota of evidence, could not evidence a relationship of master and servant: mush less could it prove that what was given by Sita Devi to the appellant was remuneration for service rendered. The conclusion of the Tribunal is therefore based on matters which may at the highest create some suspicion, and upon its view that the burden of proving that the receipts were not taxable lay upon the appellant. But a conclusion recorded by the Tribunal by wrongly throwing the burden of proof upon the assessee cannot be regarded as binding upon the High Court in a reference under S. 66 of the Income-tax Act.Counsel for the Commissioner contended that beside the two circumstance relied upon by the Tribunal there were other circumstances on which the conclusion of the Tribunal could be sustained. These circumstances, counsel submitted, are on the record and must have weighed with the Tribunal in arriving at its finding that the receipts by the appellant were of the nature of income. These were (a) that the appellant belonged to a family of Dasis who are generally employed in the ruling family of Pittapuram in a menial capacity (b) that the appellant was receiving a salary of Rs. 8 per month from the Maharaja of Pittapuram; (c) that the appellant was associted with Sita Devi for at least 8 years before the earliest year of account relevant in these appeals; (d) that large amounts in cash and also jewellery were given to the appellant from time to time after Sita Devi married the Gaekwad of Baroda, (e) that the gifts commenced immediately after Sita Devi married the Gaekwad of Baroda; (f) that the appellant assisted Sita Devi in securing divorce from the Yuvaraja of Vuyyur and in getting married to the Gaekwad of Baroad; (g) that the appellant lived with Sita Devi in London in the year 1949-50 and also at Baroda; and (h) that similar gifts were given to one Narsinghrao "associate of the appellant" and to the daughters of the appellants sisters. There is no evidence in support of (f), and the circumstances (a) to (c) and (g) cannot possibly lead to the conclusion that property of large value was given to the appellant by Sita Devi as remuneration for performance of service circumstance (h) is irrelevant.On the first part of the two questions it must be recorded that what the assessee received in the relevant years of account was not assessable to tax. It is unnecessary to record, as already obsered, a finding on the second branch of the question, viz. whether S. 34 of the Income-tax Act could properly be invoked in regard to those receipts.It is not necessary to consider whether theOfficer was competent to issue a notice under S. 34 of theAct for the years1, for in our view the property received by the appellant was not remuneration given to her by Sita Devi for services rendered or to be rendered by her.
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Evans Fraser (India) Limited Vs. Trig Detectives Private Limited | faith nor based on substantial defence, it would be open to the court to direct admission of the petition, even while giving option to the company to have the petition deferred pending payment of part of the amount and adequate security in respect of the balance. It is necessary in such cases to strike a reasonable balance between the desirability that the company, in the absence of unusual features, meets its legitimate claim, and the imperative that the proceedings are not allowed to become an instrument of illegitimate pressure."12. In the case of The Pradeshiya Industrial & Investment Corporation of Uttar Pradesh v. North India Petro Chemical Ltd. & Anr., JT 1994 (1) SC 579 , the Supreme Court reiterated the principle that the machinery for winding up of a company cannot be utilised merely as a means of realising of the debt. The court has to determine the correctness of the debt and inability of the company to pay such a debt despite notice. A party is expected to elect its remedy in terms of filing of a petition for winding up of the company as opposed to filing of suit for such recovery. This election is a conscience exercise of decision by a person who invokes the remedy of filing petition for winding up and thus, the burden is upon a person approaching for such relief to establish the ingredients of section 433 of the Companies Act.13. In the present case, the defence raised by the appellant-company was bonafide and cannot be said to be a sham defence taken in abstract, dehors the correspondence between the parties. Most of the payments were made against bills or at least for the dues relatable to the month in which the security guards services were provided. The photo copies of the receipts, seen in the light of the statement of account and correspondence exchanged between the parties and the fact that the appellant company had disputed at the very outset their liability towards any debt and in fact had raised claims against the respondent company in reply to the legal a notice served upon the appellant company in terms of Section 433 of the Act are indicative of the fact that the defence raised by the appellant company is supported by prima facie material and, therefore, is bona fide. The legal and factual issues raised by the appellant company show bona fide disputes in relation to the debt claimed by the respondent company. We have noticed that a winding up petition is not a legitimate means of seeking to enforce payment of the debt which is bona fide disputed by the Company. A petition, presented ostensibly, for a winding up order to exert pressure on the other side would tantamount to improper exercise of special jurisdiction and as such would not be liable to be admitted. The admission of the petition and consequential appointment of a Liquidator jeopardises the interests of the company to a great extent. Winding up of a company would even amount to a civil death of the Company. Wherever the company has not been able to show any bona fide dispute to an apparently payable debt, the matters may be different. But where there are disputes raised bona fide and that too of a serious nature and parties would have to lead complex evidence, documentary and oral, to substantiate their claim or counter claim, it may not be proper to admit the company petition.The respondent company sat quiet for a considerable time i.e. from the year 2004 and served the legal notice after a lapse of nearly two years i.e. 3rd February, 2006, and the petition for winding up was filed in November 2006. It is not even the case of the respondent company in its pleading that appellant company is incapable of paying its debts stricto senso. In response to the legal notice served on the appellant company, the company had disputed the claim. There is no document on record to show that the appellant company had even admitted the debt payable to the respondent company. Once a bona fide dispute is raised by the company which appears to be genuine, the order of winding up should not be passed. The previous litigation between the parties also indicates that the stand taken by the company in the winding up petition is not without any basis. The basic defence raised in the winding up petition is bona fide. Of course, we are not commenting upon the counter claims raised by the appellant company. They appeared to be vague but that itself would not be a sufficient ground to reject the principal plea of the appellant company which, in our opinion, raises a bona fide dispute. In the case of Pradeshiya Industrial (supra) the Supreme Court had clearly spelled out the principle that the jurisdiction under Section 433(e) of the Act is discretionary and there must be a debt due and the Company must be unable to pay the same. A debt under this Section must be determined for a definite sum of money payable. It is also evident that the discretion of the Company Court under this provision is normally guided by the principles viz. (i) that the defence of the company is in good faith and is one of some substance; (ii) the defence is likely to succeed in point of law; and (iii) the company produced prima facie proof of the facts on which the defence depends.14. Examining the factual matrix of the present case in light of the above principles, we have no hesitation in coming to the conclusion that these principles have not been correctly applied by the Court in admitting the winding up petition as the appellant company had raised a bona fide dispute which can more appropriately be gone into by leading cogent and detailed documentary or oral evidence by the parties. It would be difficult to determine these questions prima facie on the basis of the documents placed on record. | 1[ds]There is no dispute that the respondent company had submitted its offer dated 16th March, 2000 to the appellant company for providing security guard personnel at the stated rates to the appellant Company. The appellant company vide its letter dated 13th April, 2000 had agreed to the terms and conditions and had modified the rates as stated. The total amount payable per month was Rs.inclusive of reliever duty charges and service charges. This was operative for a period of six months initially. The payments were increased from time to time which is also evident from the documents placed on record includingThe amounts in excess of agreed amounts were also charged. Further, it is also clear that the security guard services were provided from 2000 to 2004. The ledger accounts of the respondent company had also been placed on record to show and substantiate the plea that it was a running account. These accounts show that the last payment of Rs. 1,50,600/was made by cheque on 27th October, 2003 in relation to Bill No. 203440 and thereafter no payment has been made by the appellant company to the respondent company. The appellant company has also placed on record, even in winding up petition, their accounts to show that each bill was being treated as separate transactions between the parties and payment against that bill was being made. The respondent company also produced before us the photo copies of the receipts issued by them in favour of the appellant company wherein they referred to particular payments and stated that full payment was made against the bill and/or that the monthly amount due and payable by the appellant Company.We have already noticed that the statement of account filed on behalf of thedoes not show any credit payment after October, 2003 though it claims to have raised number of bills thereafter on the basis that it was a running account of mutual interest. The payment was also made in the court under the directions of the court for a sum of Rs.5,35,791. Thereafter, except service of the legal notice and reply thereto, there is no correspondence between the parties which would substantiate that there was mutuality of account and any payments had been made on behalf of theThe learned Single Judge in the impugned judgment noticed that neither there is specific denial of the petitioners claim nor a specific defence is taken on the point of limitation in the reply affidavit. Thus, the plea of limitation was liable to be rejected. It was further noticed that part payment in lumpsum from time to time were made and not against the bills. On this premise, the learned Company Judge rejected the plea of limitation. These findings are challenged on the ground that they are contrary to the record and in fact, are not supported even by the documents produced on behalf of thefind some substance in the submission made. Certainly, evidence was required to show that there is mutuality in the running account and that the payments were not made bill to bill but on account. It has already been noticed that as per the statement filed by thethe payments were being made against the bill as demonstrated by Exhibit 6. That the statement of account does not show any payment or raising of a bill subsequent to August, 2004 while the statement of account filed by thebefore this court again reflects no payment of credit after October, 2003. These were the matters which ought to have been established by leading cogent oral and documentary evidence and the plea could not be rejected summarily in the manner in which it has been rejected under the impugned order. Furthermore, the order passed by the Division Bench of this court in Civil Writ Petition No. 3050 of 2003 also to a great extent supports the plea/defence taken by thethat it is not sham but is bonafide. In the said writ petition, thewas a party and no pleadings even were filed on their behalf to show that the amounts were due to theny. On the contrary, parties to the writ petition felt satisfied by the order of the court in directing theIt is a settled principle of law that, in a winding up petition, unless the disputes raised are without substance, it must be apparent from the record that, before the winding up petition is admitted, the company is unable to pay its debt. The petition for winding up cannot be equated with a petition simplicitor for recovery of money.In the present case, the defence raised by thewas bonafide and cannot be said to be a sham defence taken in abstract, dehors the correspondence between the parties. Most of the payments were made against bills or at least for the dues relatable to the month in which the security guards services were provided. The photo copies of the receipts, seen in the light of the statement of account and correspondence exchanged between the parties and the fact that the appellant company had disputed at the very outset their liability towards any debt and in fact had raised claims against the respondent company in reply to the legal a notice served upon the appellant company in terms of Section 433 of the Act are indicative of the fact that the defence raised by the appellant company is supported by prima facie material and, therefore, is bonapetition, presented ostensibly, for a winding up order to exert pressure on the other side would tantamount to improper exercise of special jurisdiction and as such would not be liable to be admitted. The admission of the petition and consequential appointment of a Liquidator jeopardises the interests of the company to a great extent. Winding up of a company would even amount to a civil death of the Company. Wherever the company has not been able to show any bona fide dispute to an apparently payable debt, the matters may be different. But where there are disputes raised bona fide and that too of a serious nature and parties would have to lead complex evidence, documentary and oral, to substantiate their claim or counter claim, it may not be proper to admit the companyis no document on record to show that the appellant company had even admitted the debt payable to the respondent company. Once a bona fide dispute is raised by the company which appears to be genuine, the order of winding up should not be passed. The previous litigation between the parties also indicates that the stand taken by the company in the winding up petition is not without any basis. The basic defence raised in the winding up petition is bona fide.Examining the factual matrix of the present case in light of the above principles, we have no hesitation in coming to the conclusion that these principles have not been correctly applied by the Court in admitting the winding up petition as the appellant company had raised a bona fide dispute which can more appropriately be gone into by leading cogent and detailed documentary or oral evidence by the parties. It would be difficult to determine these questions prima facie on the basis of the documents placed on record. | 1 | 4,779 | 1,277 | ### Instruction:
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faith nor based on substantial defence, it would be open to the court to direct admission of the petition, even while giving option to the company to have the petition deferred pending payment of part of the amount and adequate security in respect of the balance. It is necessary in such cases to strike a reasonable balance between the desirability that the company, in the absence of unusual features, meets its legitimate claim, and the imperative that the proceedings are not allowed to become an instrument of illegitimate pressure."12. In the case of The Pradeshiya Industrial & Investment Corporation of Uttar Pradesh v. North India Petro Chemical Ltd. & Anr., JT 1994 (1) SC 579 , the Supreme Court reiterated the principle that the machinery for winding up of a company cannot be utilised merely as a means of realising of the debt. The court has to determine the correctness of the debt and inability of the company to pay such a debt despite notice. A party is expected to elect its remedy in terms of filing of a petition for winding up of the company as opposed to filing of suit for such recovery. This election is a conscience exercise of decision by a person who invokes the remedy of filing petition for winding up and thus, the burden is upon a person approaching for such relief to establish the ingredients of section 433 of the Companies Act.13. In the present case, the defence raised by the appellant-company was bonafide and cannot be said to be a sham defence taken in abstract, dehors the correspondence between the parties. Most of the payments were made against bills or at least for the dues relatable to the month in which the security guards services were provided. The photo copies of the receipts, seen in the light of the statement of account and correspondence exchanged between the parties and the fact that the appellant company had disputed at the very outset their liability towards any debt and in fact had raised claims against the respondent company in reply to the legal a notice served upon the appellant company in terms of Section 433 of the Act are indicative of the fact that the defence raised by the appellant company is supported by prima facie material and, therefore, is bona fide. The legal and factual issues raised by the appellant company show bona fide disputes in relation to the debt claimed by the respondent company. We have noticed that a winding up petition is not a legitimate means of seeking to enforce payment of the debt which is bona fide disputed by the Company. A petition, presented ostensibly, for a winding up order to exert pressure on the other side would tantamount to improper exercise of special jurisdiction and as such would not be liable to be admitted. The admission of the petition and consequential appointment of a Liquidator jeopardises the interests of the company to a great extent. Winding up of a company would even amount to a civil death of the Company. Wherever the company has not been able to show any bona fide dispute to an apparently payable debt, the matters may be different. But where there are disputes raised bona fide and that too of a serious nature and parties would have to lead complex evidence, documentary and oral, to substantiate their claim or counter claim, it may not be proper to admit the company petition.The respondent company sat quiet for a considerable time i.e. from the year 2004 and served the legal notice after a lapse of nearly two years i.e. 3rd February, 2006, and the petition for winding up was filed in November 2006. It is not even the case of the respondent company in its pleading that appellant company is incapable of paying its debts stricto senso. In response to the legal notice served on the appellant company, the company had disputed the claim. There is no document on record to show that the appellant company had even admitted the debt payable to the respondent company. Once a bona fide dispute is raised by the company which appears to be genuine, the order of winding up should not be passed. The previous litigation between the parties also indicates that the stand taken by the company in the winding up petition is not without any basis. The basic defence raised in the winding up petition is bona fide. Of course, we are not commenting upon the counter claims raised by the appellant company. They appeared to be vague but that itself would not be a sufficient ground to reject the principal plea of the appellant company which, in our opinion, raises a bona fide dispute. In the case of Pradeshiya Industrial (supra) the Supreme Court had clearly spelled out the principle that the jurisdiction under Section 433(e) of the Act is discretionary and there must be a debt due and the Company must be unable to pay the same. A debt under this Section must be determined for a definite sum of money payable. It is also evident that the discretion of the Company Court under this provision is normally guided by the principles viz. (i) that the defence of the company is in good faith and is one of some substance; (ii) the defence is likely to succeed in point of law; and (iii) the company produced prima facie proof of the facts on which the defence depends.14. Examining the factual matrix of the present case in light of the above principles, we have no hesitation in coming to the conclusion that these principles have not been correctly applied by the Court in admitting the winding up petition as the appellant company had raised a bona fide dispute which can more appropriately be gone into by leading cogent and detailed documentary or oral evidence by the parties. It would be difficult to determine these questions prima facie on the basis of the documents placed on record.
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in winding up petition, their accounts to show that each bill was being treated as separate transactions between the parties and payment against that bill was being made. The respondent company also produced before us the photo copies of the receipts issued by them in favour of the appellant company wherein they referred to particular payments and stated that full payment was made against the bill and/or that the monthly amount due and payable by the appellant Company.We have already noticed that the statement of account filed on behalf of thedoes not show any credit payment after October, 2003 though it claims to have raised number of bills thereafter on the basis that it was a running account of mutual interest. The payment was also made in the court under the directions of the court for a sum of Rs.5,35,791. Thereafter, except service of the legal notice and reply thereto, there is no correspondence between the parties which would substantiate that there was mutuality of account and any payments had been made on behalf of theThe learned Single Judge in the impugned judgment noticed that neither there is specific denial of the petitioners claim nor a specific defence is taken on the point of limitation in the reply affidavit. Thus, the plea of limitation was liable to be rejected. It was further noticed that part payment in lumpsum from time to time were made and not against the bills. On this premise, the learned Company Judge rejected the plea of limitation. These findings are challenged on the ground that they are contrary to the record and in fact, are not supported even by the documents produced on behalf of thefind some substance in the submission made. Certainly, evidence was required to show that there is mutuality in the running account and that the payments were not made bill to bill but on account. It has already been noticed that as per the statement filed by thethe payments were being made against the bill as demonstrated by Exhibit 6. That the statement of account does not show any payment or raising of a bill subsequent to August, 2004 while the statement of account filed by thebefore this court again reflects no payment of credit after October, 2003. These were the matters which ought to have been established by leading cogent oral and documentary evidence and the plea could not be rejected summarily in the manner in which it has been rejected under the impugned order. Furthermore, the order passed by the Division Bench of this court in Civil Writ Petition No. 3050 of 2003 also to a great extent supports the plea/defence taken by thethat it is not sham but is bonafide. In the said writ petition, thewas a party and no pleadings even were filed on their behalf to show that the amounts were due to theny. On the contrary, parties to the writ petition felt satisfied by the order of the court in directing theIt is a settled principle of law that, in a winding up petition, unless the disputes raised are without substance, it must be apparent from the record that, before the winding up petition is admitted, the company is unable to pay its debt. The petition for winding up cannot be equated with a petition simplicitor for recovery of money.In the present case, the defence raised by thewas bonafide and cannot be said to be a sham defence taken in abstract, dehors the correspondence between the parties. Most of the payments were made against bills or at least for the dues relatable to the month in which the security guards services were provided. The photo copies of the receipts, seen in the light of the statement of account and correspondence exchanged between the parties and the fact that the appellant company had disputed at the very outset their liability towards any debt and in fact had raised claims against the respondent company in reply to the legal a notice served upon the appellant company in terms of Section 433 of the Act are indicative of the fact that the defence raised by the appellant company is supported by prima facie material and, therefore, is bonapetition, presented ostensibly, for a winding up order to exert pressure on the other side would tantamount to improper exercise of special jurisdiction and as such would not be liable to be admitted. The admission of the petition and consequential appointment of a Liquidator jeopardises the interests of the company to a great extent. Winding up of a company would even amount to a civil death of the Company. Wherever the company has not been able to show any bona fide dispute to an apparently payable debt, the matters may be different. But where there are disputes raised bona fide and that too of a serious nature and parties would have to lead complex evidence, documentary and oral, to substantiate their claim or counter claim, it may not be proper to admit the companyis no document on record to show that the appellant company had even admitted the debt payable to the respondent company. Once a bona fide dispute is raised by the company which appears to be genuine, the order of winding up should not be passed. The previous litigation between the parties also indicates that the stand taken by the company in the winding up petition is not without any basis. The basic defence raised in the winding up petition is bona fide.Examining the factual matrix of the present case in light of the above principles, we have no hesitation in coming to the conclusion that these principles have not been correctly applied by the Court in admitting the winding up petition as the appellant company had raised a bona fide dispute which can more appropriately be gone into by leading cogent and detailed documentary or oral evidence by the parties. It would be difficult to determine these questions prima facie on the basis of the documents placed on record.
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State Bank Of India Vs. M. Selvaraj Daniel | the reference to the Sastry Tribunal. This was dealt with in Chapter XIII of the award in four sections. Section I sets out the different contentions raised by the employer and the workmens Counsel. Thus, after mentioning that the employees generally asked for point to point adjustment, i.e., placing of each employee at that stage in the new scale to which he would have risen by reason of the length of his service if he had entered service on the new scale, the Tribunal stated that for the reasons given in Paras. 113 to 117 of the Sen Award it agreed with the conclusion of the Sen Tribunal that a compromise between the two methods advocated by the parties should be adopted. After a general discussion of the arguments in Paras. 285 to 291, the Tribunal proceeded to give concrete directions in Para. 292 dealing with the matter in six sub-paragraphs, as regards workmen who entered the service of the Bank before January 31, 1950; one subparagraph was as regards workmen who joined service of the Bank after January 31, 1950; seven more sub-paragraphs -subparas. 8 to 14 laid down general rules applicable to all workmen whether appointed before or after January 31, 1950.8. This scheme of adjustment was maintained by the Appellate Tribunal with the modification that 31st January 1953 in the Award was substituted by31st January 1954 and 1st April 1953 was substituted by the words 1st April 1954. Clause (d) of sub-para. 4 was deleted and in its place sub-para. 4 (A) was substituted which ran thus:-"After adjustments are made in accordance with the directions given, three further annual increments in the new scale will be added thereto for service for the three years 1951 to 1953. In addition the workman will be entitled to draw his normal increment for 1954 on the 1st of April 1954. Thereafter, each succeeding years annual increment shall take effect as and from the 1st April of that year.9. For workmen appointed before January 31, 1950 there was thus a definite direction that succeeding years annual increments shall take effect from April 1 of that year.10. Sub-paragraph 7 dealing with the workmen who joined service after January 31, 1950 runs thus:"The workmen shall be fitted into the new scale of pay on a point-to-point basis as though it had been in force since he joined the service of the Bank, provided that his adjusted basic pay is not less than what it would be under a point-to-point adjustment on the corresponding "pre-Sen scale.11. It is important to notice that in this provision as regards the workmen who joined service of the Bank after January 31, 1950 no direction has been given as regards the date from which annual increments should take effect. Nor can we find anything in the remaining seven sub-paragraphs laying down generally the rules, any directions whatsoever to justify the plea that the future increments of workmen who joined service of the Bank after January 31, 1950 would start from April 1 of the year. The provision in Para. 12 that the adjusted pay shall have effect from 1st April 1954 has nothing to do with the commencement of future increments. The reason why such a direction was given as regards workmen who entered the service of the Bank before January 31, 1950 and none was given as regards workmen who joined after that date appears to be clear. For workmen who entered the service of the Bank before January 31, 1950 detailed provisions for fitting them into the scales were made including the provisions for increments. It was in view of this apparently that it was thought necessary to indicate the time from which further increments would commence. As the Tribunal brought the new scales into force with effect from 1953 the direction that locally followed was that each succeeding years annual increment would take effect as and from April 1 of that year. The Appellate Tribunal decided to adjust the pay upto 1st April 1954 instead of 1st April 1953. But that did not change the logical position that each succeeding years increment would take effect as and from 1st April of that year.12. The above considerations had no application to the workmen who were directed to be fitted into the new scale of pay on a point to point basis as though it had been in force since they joined the service of the Bank. On the basis that the new scale was in force at the date when the workmen joined the service of the Bank there can be no escape from the conclusion that the increments as provided in that scale would take effect from the anniversary of the date of appointment.13. It is unnecessary for us to consider here why the workmen who joined the service of the Bank after January 31, 1950 were not being given increments in the same way as those who had entered the service before that date. Some indication is given in the Tribunals observations that it would be proper to let bygones be bygones and there should be neither retrospective adjustment of pay or allowances actually paid nor further claims for more than what has been given already. Whatever the reason be the fact remains that special directions were given as regards the adjustment into the pay scale of the workmen who had joined the service of the Bank after January 1950 and in their case nothing was said as to the date from which future increments would take effect. The necessary and inevitable consequence of the absence of any such direction in the matter is, as we have already indicated, that future increments would be on that date of the year when the workman was appointed.14. We have thus reached the conclusion that even on application of the rules of adjustment into the new scale on the assumption that such adjustment was necessary, the appellant-workman would be entitled to the relief he had asked for. | 0[ds]12. The above considerations had no application to the workmen who were directed to be fitted into the new scale of pay on a point to point basis as though it had been in force since they joined the service of the Bank. On the basis that the new scale was in force at the date when the workmen joined the service of the Bank there can be no escape from the conclusion that the increments as provided in that scale would take effect from the anniversary of the date of appointment.13. It is unnecessary for us to consider here why the workmen who joined the service of the Bank after January 31, 1950 were not being given increments in the same way as those who had entered the service before that date. Some indication is given in the Tribunals observations that it would be proper to let bygones be bygones and there should be neither retrospective adjustment of pay or allowances actually paid nor further claims for more than what has been given already. Whatever the reason be the fact remains that special directions were given as regards the adjustment into the pay scale of the workmen who had joined the service of the Bank after January 1950 and in their case nothing was said as to the date from which future increments would take effect. The necessary and inevitable consequence of the absence of any such direction in the matter is, as we have already indicated, that future increments would be on that date of the year when the workman was appointed.14. We have thus reached the conclusion that even on application of the rules of adjustment into the new scale on the assumption that such adjustment was necessary, the appellant-workman would be entitled to the relief he had asked for. | 0 | 2,111 | 319 | ### Instruction:
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the reference to the Sastry Tribunal. This was dealt with in Chapter XIII of the award in four sections. Section I sets out the different contentions raised by the employer and the workmens Counsel. Thus, after mentioning that the employees generally asked for point to point adjustment, i.e., placing of each employee at that stage in the new scale to which he would have risen by reason of the length of his service if he had entered service on the new scale, the Tribunal stated that for the reasons given in Paras. 113 to 117 of the Sen Award it agreed with the conclusion of the Sen Tribunal that a compromise between the two methods advocated by the parties should be adopted. After a general discussion of the arguments in Paras. 285 to 291, the Tribunal proceeded to give concrete directions in Para. 292 dealing with the matter in six sub-paragraphs, as regards workmen who entered the service of the Bank before January 31, 1950; one subparagraph was as regards workmen who joined service of the Bank after January 31, 1950; seven more sub-paragraphs -subparas. 8 to 14 laid down general rules applicable to all workmen whether appointed before or after January 31, 1950.8. This scheme of adjustment was maintained by the Appellate Tribunal with the modification that 31st January 1953 in the Award was substituted by31st January 1954 and 1st April 1953 was substituted by the words 1st April 1954. Clause (d) of sub-para. 4 was deleted and in its place sub-para. 4 (A) was substituted which ran thus:-"After adjustments are made in accordance with the directions given, three further annual increments in the new scale will be added thereto for service for the three years 1951 to 1953. In addition the workman will be entitled to draw his normal increment for 1954 on the 1st of April 1954. Thereafter, each succeeding years annual increment shall take effect as and from the 1st April of that year.9. For workmen appointed before January 31, 1950 there was thus a definite direction that succeeding years annual increments shall take effect from April 1 of that year.10. Sub-paragraph 7 dealing with the workmen who joined service after January 31, 1950 runs thus:"The workmen shall be fitted into the new scale of pay on a point-to-point basis as though it had been in force since he joined the service of the Bank, provided that his adjusted basic pay is not less than what it would be under a point-to-point adjustment on the corresponding "pre-Sen scale.11. It is important to notice that in this provision as regards the workmen who joined service of the Bank after January 31, 1950 no direction has been given as regards the date from which annual increments should take effect. Nor can we find anything in the remaining seven sub-paragraphs laying down generally the rules, any directions whatsoever to justify the plea that the future increments of workmen who joined service of the Bank after January 31, 1950 would start from April 1 of the year. The provision in Para. 12 that the adjusted pay shall have effect from 1st April 1954 has nothing to do with the commencement of future increments. The reason why such a direction was given as regards workmen who entered the service of the Bank before January 31, 1950 and none was given as regards workmen who joined after that date appears to be clear. For workmen who entered the service of the Bank before January 31, 1950 detailed provisions for fitting them into the scales were made including the provisions for increments. It was in view of this apparently that it was thought necessary to indicate the time from which further increments would commence. As the Tribunal brought the new scales into force with effect from 1953 the direction that locally followed was that each succeeding years annual increment would take effect as and from April 1 of that year. The Appellate Tribunal decided to adjust the pay upto 1st April 1954 instead of 1st April 1953. But that did not change the logical position that each succeeding years increment would take effect as and from 1st April of that year.12. The above considerations had no application to the workmen who were directed to be fitted into the new scale of pay on a point to point basis as though it had been in force since they joined the service of the Bank. On the basis that the new scale was in force at the date when the workmen joined the service of the Bank there can be no escape from the conclusion that the increments as provided in that scale would take effect from the anniversary of the date of appointment.13. It is unnecessary for us to consider here why the workmen who joined the service of the Bank after January 31, 1950 were not being given increments in the same way as those who had entered the service before that date. Some indication is given in the Tribunals observations that it would be proper to let bygones be bygones and there should be neither retrospective adjustment of pay or allowances actually paid nor further claims for more than what has been given already. Whatever the reason be the fact remains that special directions were given as regards the adjustment into the pay scale of the workmen who had joined the service of the Bank after January 1950 and in their case nothing was said as to the date from which future increments would take effect. The necessary and inevitable consequence of the absence of any such direction in the matter is, as we have already indicated, that future increments would be on that date of the year when the workman was appointed.14. We have thus reached the conclusion that even on application of the rules of adjustment into the new scale on the assumption that such adjustment was necessary, the appellant-workman would be entitled to the relief he had asked for.
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12. The above considerations had no application to the workmen who were directed to be fitted into the new scale of pay on a point to point basis as though it had been in force since they joined the service of the Bank. On the basis that the new scale was in force at the date when the workmen joined the service of the Bank there can be no escape from the conclusion that the increments as provided in that scale would take effect from the anniversary of the date of appointment.13. It is unnecessary for us to consider here why the workmen who joined the service of the Bank after January 31, 1950 were not being given increments in the same way as those who had entered the service before that date. Some indication is given in the Tribunals observations that it would be proper to let bygones be bygones and there should be neither retrospective adjustment of pay or allowances actually paid nor further claims for more than what has been given already. Whatever the reason be the fact remains that special directions were given as regards the adjustment into the pay scale of the workmen who had joined the service of the Bank after January 1950 and in their case nothing was said as to the date from which future increments would take effect. The necessary and inevitable consequence of the absence of any such direction in the matter is, as we have already indicated, that future increments would be on that date of the year when the workman was appointed.14. We have thus reached the conclusion that even on application of the rules of adjustment into the new scale on the assumption that such adjustment was necessary, the appellant-workman would be entitled to the relief he had asked for.
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Commnr. of Central Excise, Hyderabad IV Vs. Stangen Immuno Diagnostics | Excise Act, the connection must be of such a nature that it reflects on the aspect of manufacture and deal with quality of the products. No hard and fast rule can be laid down however it is possible that words which merely indicate the party who is marketing the product may not be sufficient. As we are not dealing with such a case we do not express any opinion on this aspect.16. This Court has, in the case of Royal Hatcheries Pvt. Ltd. v. State of A.P., 1994 Supp (1) SCC 429, already held that words to the effect "that is to say" qualify the words which precede them. In this case also the words "that is to say" qualify the words "brand name or trade name" by indicating that these terms must therefore be understood in the context of the words which follow. The words which follow are of wide amplitude and include any word, mark, symbol, monogram or label. Even a signature of an invented word or any writing would be sufficient if it is used in relation to the product for purpose of indicating a connection between the product and the other person/company." 13. Likewise, in CCE v. Bhalla Enterprises, (2005) 8 SCC 308 this Court was eloquent in observing that as per the aforesaid Notification, the assessee will be debarred only if it uses on the goods, in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with the assessees goods and such other person or uses the name in such a manner that it would indicate such connection. 14. All these judgments were taken note by this Court in a recent case in Nirlex Spares (P) Ltd. v. Commissioner of Central Excise, (2008) 2 SCC 628. On the facts of that case, the Supreme Court was of the opinion that the assessee had not offended condition no.4. In that case, the goods were manufactured by the assessee and the Marketing Company which was its marketing agent. On the packing of goods, brand names of the assessee "INTATEX" and "INTACO" were clearly and prominently printed. In between these two brand names, a hexagonal shape/design, which was claimed by the Department to be the brand of the Marketing Company, was also printed. In this backdrop, the question was as to whether the assessee company was using the said hexagonal shape/design of other person. On the facts of that case, the Court found that there was nothing on record to show that the said hexagonal shape/design belonged to or was owned by the Marketing Company and thus they had permitted the assessee to use the same on the corrugated boxes. The Court also found that the hexagonal design/shape could not be said to be descriptive enough to serve as an indicator of nexus between the goods of the assessee and the Marketing Company. On this basis, it was concluded that the alleged monogram could not be the brand name or trade name of the Marketing Company. 15. We would also like to reproduce the following observation from Commissioner of Central Excise, Chandigarh II v. Bhalla Enterprises, (2005) 8 SCC 308:- "The apprehension of the assessees that they may be denied the exemption merely because some other traders even in a remote area of the country had used the trade mark earlier is unfounded.The notification clearly indicates that the assessee will be debarred only if it is uses on the goods in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with the assessees goods and such other person or uses the name in such a manner that it would indicate such connection. Therefore, if the assessee is able to satisfy the assessing authorities that there was no such intention or that the user of the brand name was entirely fortuitous and could not on a fair appraisal of the marks indicate any such connection, it would be entitled to the benefit of exemption. An assessee would also be entitled to the benefit of the exemption if the brand name belongs to the assessee himself although someone else may be equally entitled to such name." These observations bring out two significant aspects namely:- (1) As per the Notification, the assessee would be debarred only if it uses on the goods in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with the assessees goods and such other person or uses the name in such a manner that it would indicate such connection. If there is no such intention or that the user of the brand name was entirely fortuitous and could not on a fair appraisal of the marks indicate any such connection, it would be entitled to the benefit of exemption.(2) The assessee would also be entitled to the benefit of exemption if the brand name belongs to the assessee himself although someone else may be equally entitled to such name. 16. Having clarified the real position, we find that matter is not examined by the authorities below in the right perspective. The factual aspects can be established only before the adjudicating authority. Therefore, while setting aside the judgment, we remit the case back to the Commissioner, Central Excise to hear the respondent de novo on the show cause notice which was issued by him and decide the matter afresh after taking into consideration the law laid down in the aforesaid judgments. It would be open to the respondent to place on record whatever material it wants to place in consonance with the stand already taken in the reply to show cause notice and opportunity in this behalf shall be given to the respondent. Respondent shall also be given oral hearing by the Commissioner before recording its finding on those issues and deciding the fate of show cause notice. It would be open to the respondent to press the plea of limitation as well. | 1[ds]6. Explanation VIII defines that brand name or trade name. As per this explanation, it would be a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of the trade between such specified goods and some person using such name or mark with or without any indication of the identity of the person. Therefore, what follows from the reading of this Explanation is that if the brand name is used in relation to the specified goods indicating a connection in the course of the trade between such specified goods and some other person using the name, it would fit the description and the matter would be covered by the mischief of Explanation VIII. It is no where stated that brand name which is the name of other person and is being used by the SSI which is claiming benefit has to be in relation to same goods. Therefore, that could not have been reason to drop the proceedings and the CEGAT was not justified in dismissing the appeal of the Department on this ground.7. The aforesaid principle of law is no more res integra and has been decided by this Court authoritatively in couple of judgments. In Commissioner of Central Excise,v. Mahaan Dairies, (2004) 11 SCC 798 this Court while interpreting the similar nature of definition of brand name or trade name, held as underhave today delivered a judgment in CCE v. Rukmani Pakkwell Traders wherein we have held in respect of another notification containing identical words that it makes no difference whether the goods on which the trade name or mark is used are the same in respect of which the trade mark is registered. Even if the goods are different, so long as the trade name or brand name of some other company is used the benefit of the notification would not be available. Further, in our view, once a trade name or brand name is used then mere use of additional words would not enable the party to claim the benefit of the notification.It is clear from the above that the Court was of the view that even if the goods are different, so long as brand name or trade name of some other Company is used, the benefit of Notification would not be available. To the same effect is the judgment of this Court in the case of Commissioner of Central Excise,v. Bhalla Enterprises (2005 (8) SCC 308 ) wherein aforesaid judgment in Mahaan Dairies was followed by reiterating the same principle.We would also like to reproduce the following observation from Commissioner of Central Excise, Chandigarh II v. Bhalla Enterprises, (2005) 8 SCCapprehension of the assessees that they may be denied the exemption merely because some other traders even in a remote area of the country had used the trade mark earlier is unfounded.The notification clearly indicates that the assessee will be debarred only if it is uses on the goods in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with the assessees goods and such other person or uses the name in such a manner that it would indicate such connection. Therefore, if the assessee is able to satisfy the assessing authorities that there was no such intention or that the user of the brand name was entirely fortuitous and could not on a fair appraisal of the marks indicate any such connection, it would be entitled to the benefit of exemption. An assessee would also be entitled to the benefit of the exemption if the brand name belongs to the assessee himself although someone else may be equally entitled to suchobservations bring out two significant aspectsAs per the Notification, the assessee would be debarred only if it uses on the goods in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with the assessees goods and such other person or uses the name in such a manner that it would indicate such connection. If there is no such intention or that the user of the brand name was entirely fortuitous and could not on a fair appraisal of the marks indicate any such connection, it would be entitled to the benefit of exemption.(2) The assessee would also be entitled to the benefit of exemption if the brand name belongs to the assessee himself although someone else may be equally entitled to such name.We would like to observe that if the aforesaid contention of the respondent is factually correct, viz. The respondent used the brand name as the owner thereof itself, and was not using the brand name as belonging to DRL and authorised by DRL, then the submission of Ms. Tripathi is legally tenable.Having clarified the real position, we find that matter is not examined by the authorities below in the right perspective. The factual aspects can be established only before the adjudicating authority. Therefore, while setting aside the judgment, we remit the case back to the Commissioner, Central Excise to hear the respondent de novo on the show cause notice which was issued by him and decide the matter afresh after taking into consideration the law laid down in the aforesaid judgments. It would be open to the respondent to place on record whatever material it wants to place in consonance with the stand already taken in the reply to show cause notice and opportunity in this behalf shall be given to the respondent. Respondent shall also be given oral hearing by the Commissioner before recording its finding on those issues and deciding the fate of show cause notice. It would be open to the respondent to press the plea of limitation as well. | 1 | 3,610 | 1,050 | ### Instruction:
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Excise Act, the connection must be of such a nature that it reflects on the aspect of manufacture and deal with quality of the products. No hard and fast rule can be laid down however it is possible that words which merely indicate the party who is marketing the product may not be sufficient. As we are not dealing with such a case we do not express any opinion on this aspect.16. This Court has, in the case of Royal Hatcheries Pvt. Ltd. v. State of A.P., 1994 Supp (1) SCC 429, already held that words to the effect "that is to say" qualify the words which precede them. In this case also the words "that is to say" qualify the words "brand name or trade name" by indicating that these terms must therefore be understood in the context of the words which follow. The words which follow are of wide amplitude and include any word, mark, symbol, monogram or label. Even a signature of an invented word or any writing would be sufficient if it is used in relation to the product for purpose of indicating a connection between the product and the other person/company." 13. Likewise, in CCE v. Bhalla Enterprises, (2005) 8 SCC 308 this Court was eloquent in observing that as per the aforesaid Notification, the assessee will be debarred only if it uses on the goods, in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with the assessees goods and such other person or uses the name in such a manner that it would indicate such connection. 14. All these judgments were taken note by this Court in a recent case in Nirlex Spares (P) Ltd. v. Commissioner of Central Excise, (2008) 2 SCC 628. On the facts of that case, the Supreme Court was of the opinion that the assessee had not offended condition no.4. In that case, the goods were manufactured by the assessee and the Marketing Company which was its marketing agent. On the packing of goods, brand names of the assessee "INTATEX" and "INTACO" were clearly and prominently printed. In between these two brand names, a hexagonal shape/design, which was claimed by the Department to be the brand of the Marketing Company, was also printed. In this backdrop, the question was as to whether the assessee company was using the said hexagonal shape/design of other person. On the facts of that case, the Court found that there was nothing on record to show that the said hexagonal shape/design belonged to or was owned by the Marketing Company and thus they had permitted the assessee to use the same on the corrugated boxes. The Court also found that the hexagonal design/shape could not be said to be descriptive enough to serve as an indicator of nexus between the goods of the assessee and the Marketing Company. On this basis, it was concluded that the alleged monogram could not be the brand name or trade name of the Marketing Company. 15. We would also like to reproduce the following observation from Commissioner of Central Excise, Chandigarh II v. Bhalla Enterprises, (2005) 8 SCC 308:- "The apprehension of the assessees that they may be denied the exemption merely because some other traders even in a remote area of the country had used the trade mark earlier is unfounded.The notification clearly indicates that the assessee will be debarred only if it is uses on the goods in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with the assessees goods and such other person or uses the name in such a manner that it would indicate such connection. Therefore, if the assessee is able to satisfy the assessing authorities that there was no such intention or that the user of the brand name was entirely fortuitous and could not on a fair appraisal of the marks indicate any such connection, it would be entitled to the benefit of exemption. An assessee would also be entitled to the benefit of the exemption if the brand name belongs to the assessee himself although someone else may be equally entitled to such name." These observations bring out two significant aspects namely:- (1) As per the Notification, the assessee would be debarred only if it uses on the goods in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with the assessees goods and such other person or uses the name in such a manner that it would indicate such connection. If there is no such intention or that the user of the brand name was entirely fortuitous and could not on a fair appraisal of the marks indicate any such connection, it would be entitled to the benefit of exemption.(2) The assessee would also be entitled to the benefit of exemption if the brand name belongs to the assessee himself although someone else may be equally entitled to such name. 16. Having clarified the real position, we find that matter is not examined by the authorities below in the right perspective. The factual aspects can be established only before the adjudicating authority. Therefore, while setting aside the judgment, we remit the case back to the Commissioner, Central Excise to hear the respondent de novo on the show cause notice which was issued by him and decide the matter afresh after taking into consideration the law laid down in the aforesaid judgments. It would be open to the respondent to place on record whatever material it wants to place in consonance with the stand already taken in the reply to show cause notice and opportunity in this behalf shall be given to the respondent. Respondent shall also be given oral hearing by the Commissioner before recording its finding on those issues and deciding the fate of show cause notice. It would be open to the respondent to press the plea of limitation as well.
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6. Explanation VIII defines that brand name or trade name. As per this explanation, it would be a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of the trade between such specified goods and some person using such name or mark with or without any indication of the identity of the person. Therefore, what follows from the reading of this Explanation is that if the brand name is used in relation to the specified goods indicating a connection in the course of the trade between such specified goods and some other person using the name, it would fit the description and the matter would be covered by the mischief of Explanation VIII. It is no where stated that brand name which is the name of other person and is being used by the SSI which is claiming benefit has to be in relation to same goods. Therefore, that could not have been reason to drop the proceedings and the CEGAT was not justified in dismissing the appeal of the Department on this ground.7. The aforesaid principle of law is no more res integra and has been decided by this Court authoritatively in couple of judgments. In Commissioner of Central Excise,v. Mahaan Dairies, (2004) 11 SCC 798 this Court while interpreting the similar nature of definition of brand name or trade name, held as underhave today delivered a judgment in CCE v. Rukmani Pakkwell Traders wherein we have held in respect of another notification containing identical words that it makes no difference whether the goods on which the trade name or mark is used are the same in respect of which the trade mark is registered. Even if the goods are different, so long as the trade name or brand name of some other company is used the benefit of the notification would not be available. Further, in our view, once a trade name or brand name is used then mere use of additional words would not enable the party to claim the benefit of the notification.It is clear from the above that the Court was of the view that even if the goods are different, so long as brand name or trade name of some other Company is used, the benefit of Notification would not be available. To the same effect is the judgment of this Court in the case of Commissioner of Central Excise,v. Bhalla Enterprises (2005 (8) SCC 308 ) wherein aforesaid judgment in Mahaan Dairies was followed by reiterating the same principle.We would also like to reproduce the following observation from Commissioner of Central Excise, Chandigarh II v. Bhalla Enterprises, (2005) 8 SCCapprehension of the assessees that they may be denied the exemption merely because some other traders even in a remote area of the country had used the trade mark earlier is unfounded.The notification clearly indicates that the assessee will be debarred only if it is uses on the goods in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with the assessees goods and such other person or uses the name in such a manner that it would indicate such connection. Therefore, if the assessee is able to satisfy the assessing authorities that there was no such intention or that the user of the brand name was entirely fortuitous and could not on a fair appraisal of the marks indicate any such connection, it would be entitled to the benefit of exemption. An assessee would also be entitled to the benefit of the exemption if the brand name belongs to the assessee himself although someone else may be equally entitled to suchobservations bring out two significant aspectsAs per the Notification, the assessee would be debarred only if it uses on the goods in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with the assessees goods and such other person or uses the name in such a manner that it would indicate such connection. If there is no such intention or that the user of the brand name was entirely fortuitous and could not on a fair appraisal of the marks indicate any such connection, it would be entitled to the benefit of exemption.(2) The assessee would also be entitled to the benefit of exemption if the brand name belongs to the assessee himself although someone else may be equally entitled to such name.We would like to observe that if the aforesaid contention of the respondent is factually correct, viz. The respondent used the brand name as the owner thereof itself, and was not using the brand name as belonging to DRL and authorised by DRL, then the submission of Ms. Tripathi is legally tenable.Having clarified the real position, we find that matter is not examined by the authorities below in the right perspective. The factual aspects can be established only before the adjudicating authority. Therefore, while setting aside the judgment, we remit the case back to the Commissioner, Central Excise to hear the respondent de novo on the show cause notice which was issued by him and decide the matter afresh after taking into consideration the law laid down in the aforesaid judgments. It would be open to the respondent to place on record whatever material it wants to place in consonance with the stand already taken in the reply to show cause notice and opportunity in this behalf shall be given to the respondent. Respondent shall also be given oral hearing by the Commissioner before recording its finding on those issues and deciding the fate of show cause notice. It would be open to the respondent to press the plea of limitation as well.
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Hamdard Dawakhana Wakf Vs. Its Workmen and Others | the character of the said evidence. Shamsul Zamans case was that on the day in question when he went to his seat, he found that Mohammad Mian was sitting with the salary register and was looking into it. He then asked Mohammad Mian to leave his seat, but Mohammad Mian did to like it. Then he told Mohammed Mian that he would complain about this conduct to the superior officer. Thereafter he sat down in his chair but Mohammad Mian put his hand on his collar and appeared determined to pick a quarrel. He, however, controlled his anger and expostulated with him. Thus, the version of Shamsul Zaman was that Mohammad Mian was to blame. On the other hand, Mohammad Mians side gave a contrary version. Mohammad Mian being dumb and deaf, other employees gave evidence on his behalf. Mohmood Ali Khan also gave evidence which seemed to show that both parties were partly to blame. In such a case, if the manager took the view that Shamsul Zaman was that aggressive party and Mohammad Mian who is dumb and deaf was the victim, it is difficult hold that such a conclusion is preserves. There is evidence on which this conclusion could be based. In deciding the question as to whether a particular conclusion of facts is perverse or not, industrial tribunal is not justified in weighing the evidence for itself and determining the question of the perversity of the managers view in the light of its own finding on the question of fact. What the tribunal has done in the present case is to reach its won conclusion on the merits of the case in the first instance and then address itself to the question as to whether the contrary view taken by the manager is perverse or not. It has thought that since the managers conclusion is contrary to the view which it itself is inclined to take, the said conclusion must be said to be perverse. In our opinion, this approach is entirely misconceived and unsound. Therefore, we must hold that the the tribunal was in error in taking the view that the managers conclusion was perverse.In this connexion, it is relevant to remember that the manager has referred to the previous conduct of Shamsul Zaman. On several occasions in the past, he had been warned; once in a case of theft, his increment was stopped and he was transferred to another section; then he was suspended for four days for quarreling; the manager had also written to his father complaining against his sons conduct and he had also been warned on 3 June, 1959, that if his activities, continued in the manner adopted by his, the appellant would not be able to keep him in service. It is in the light of these blemishes in his past record that the manager ultimately decided to dismiss him. It has been urged before us by Mr. Kishore that the service record of Shamsul Zaman has not been produced before the tribunal. We do not see how that makes any difference. All that the appellant was expected to do in the present proceedings was to prove that a proper enquiry had been held before Shamsul Zaman was dismissed and that has been done by leading oral evidence and producing documentary evidence in respect of the enquiry. It has not been suggested when the oral evidence was led on behalf of the appellant that the reference to the blemished past record of Shamsul Zaman was untrue and that he had, in fact, not been warned or punished in the past. Therefore, it was not necessary for the appellant to produce the service book of Shamsul Zaman.6. It is then argued by Mr. Kishore that Shamsul Zaman was not given an opportunity to meet the manager though he had requested for such an opportunity. We do not think that the requirements of natural justice made it necessary for the appellant to give Shamsul Zaman an opportunity to meet the manager. What is necessary in such cases is that a fair enquiry should be held, and such an enquiry has been held even according to the findings of the tribunal. That being so, after the report was submitted by the enquiry officer to the manager, the manager was not bound to hear Shamsul Zaman again. Besides, in point of fact, the manager did see Shamsul Zaman and did hear what he had to say. This has been mention by the manager in his own order. Mr. Kishore, however, contends that the manager admitted in his evidence that he did not give a hearing to Shamsul Zaman at any time before he passed the order of dismissal. This statement, in the context, means that he did not give a regular hearing to Shamsul Zaman; what he did was merely to see him and listen to what he had to say. We do not think that the statement on which Mr. Kishore relies can help to establish that managers order is inaccurate when it says that the manager gave Shamsul Zaman and opportunity to meet him as desired by him. In the light of these facts, we do not see how it should be possible to hold that the dismissal of Shamsul Zaman is an act of victimization. Even if the appellant may be favouring the rival union, the fact that Shamsul Zaman was an active worker in the union of whose activities the appellant the appellant does not approve, does not by itself show that the dismissal of Shamsul Zaman is an act of victimization. Once it is held that Shamsul Zaman was guilty of misconduct and it is found that the said conclusion is not perverse, the dismissal of the offending workman must be upheld even though the said workman may be an active worker in the union not liked by the appellant. We are making these observations on the assumption that the appellant disapproves of one union and favours the other. | 1[ds]The fact that a part of the profits would not be taxed is irrelevant for the purpose of the formula. This point was, however, not raised before the tribunal and we do not think it would be right to allow this point to be raised for the first time in appeal; as the tribunal has pointed out, the amount of Rs. 68, 000 has been allowed by it because that is the amount which the appellant claimed in that behalf before thedoubt, it was sought to be suggested that this point had been argued before the tribunal and had not been considered by it. We do not think that this suggestion isThe award of the tribunal clearly shows that in respect of the amount ofclaimable by the appellant, there was no dispute between the parties; the appellant claimed a specific amount of Rs. 68, 000 and the respondents agreed to it. That is why the tribunal has allowed the said item without discussing any other aspect of the matter. Therefore, we do not think the appellant can in fairness be allowed to take this new point which was not agitated before the tribunal, so far as bonus for 1959 isour opinion, both the reasons given by the tribunal are notIt is well settled that in making the calculations under the Full Bench formula, what industrial adjudication has to take into account is the notional normal depreciation and not the actual depreciation. In the profit and loss account, it is the actual depreciation that would be shown and not the notional normal depreciation and so, the fact that the former depreciation has been shown in the profit and loss account cannot be held to be a factor against the appellant. In regard to the finding of the tribunal that there was no satisfactory proof about this notional depreciation, it appears that the tribunals attention was not drawn to the evidence on thiswe are satisfied that the tribunal was in error in not allowing the appellant the amount of Rs. 2, 22, 698 by way of notional normal depreciation. That being so, the available surplus which has been found by the tribunal to be Rs. 5, 12, 698 is reduced to Rs. 3, 96, 616. Roughly, the available surplus can be taken to be Rs. 4 lakhs.That raises the question as to the division of this surplus between the appellant and the respondents. The award of the tribunal shows that it gave the respondents aboutof the available surplus as determined byregard to all the circumstances, we think that it is not necessary to disturb the proportion adopted by the tribunal in dividing the available surplus between the appellant and the respondents. We would accordingly direct that in addition to about Rs. 70, 000 which has been paid by the appellant to the respondents by way of bonus for the relevant year, it should make a further payment of Rs. 63, 000 in that behalf. There has been some dispute before us as to the total amount of the wage bill of the respondents. We would, therefore, avoid making any reference to the number of months in directing the payment of bonus. The only direction we would, therefore, give is that the respondents should obtain from the appellant by way of additional bonus Rs. 63, 000 for the yeartribunal has taken the view that the order thus passed by the manager terminating the services of Shamsul Zaman was not justified and so, it has directed the reinstatement of Shamsul Zaman. Thecontends that in passing this order, the tribunal has acted beyond its jurisdiction.In reaching its conclusion that the order of dismissal was unjustified, the tribunal has been influenced by the fact that Shamsul Zaman was an active worker in the Hamdard Dawakhana Employees Union and that the appellant did not approve of the activities of this union. There is another union to which some of the appellants employees belong and that is the Union Mulazaman Hamdard Dawakhana. It appears that according to the respondents, this latter union is favoured by the appellant. The tribunal took the view that the dismissal in the present case amounted to victimization and it has also held that the finding of the manager is perverse. If the finding of the tribunal that the conclusion of the manager is perverse can be sustained, then, of course, there would be no difficulty in upholding the order of reinstatement passed by it. But we find it difficult to affirm the view taken by the tribunal that the impugned finding of the manager is perverse. As we have pointed out on several occasions in dealing with industrial disputes of this kind, an industrial tribunal would be justified in characterizing the finding recorded in the domestic enquiry as perverse only if it is shown that such a finding is not supported by any evidence, or is entirely opposed to the whole body of the evidence adduced before it. In the present case, such a conclusion is obviouslydeciding the question as to whether a particular conclusion of facts is perverse or not, industrial tribunal is not justified in weighing the evidence for itself and determining the question of the perversity of the managers view in the light of its own finding on the question of fact. What the tribunal has done in the present case is to reach its won conclusion on the merits of the case in the first instance and then address itself to the question as to whether the contrary view taken by the manager is perverse or not. It has thought that since the managers conclusion is contrary to the view which it itself is inclined to take, the said conclusion must be said to be perverse. In our opinion, this approach is entirely misconceived and unsound. Therefore, we must hold that the the tribunal was in error in taking the view that the managers conclusion wasdo not think that the requirements of natural justice made it necessary for the appellant to give Shamsul Zaman an opportunity to meet the manager. What is necessary in such cases is that a fair enquiry should be held, and such an enquiry has been held even according to the findings of the tribunal. That being so, after the report was submitted by the enquiry officer to the manager, the manager was not bound to hear Shamsul Zaman again. Besides, in point of fact, the manager did see Shamsul Zaman and did hear what he had to say. This has been mention by the manager in his own order. Mr. Kishore, however, contends that the manager admitted in his evidence that he did not give a hearing to Shamsul Zaman at any time before he passed the order of dismissal. This statement, in the context, means that he did not give a regular hearing to Shamsul Zaman; what he did was merely to see him and listen to what he had to say. We do not think that the statement on which Mr. Kishore relies can help to establish that managers order is inaccurate when it says that the manager gave Shamsul Zaman and opportunity to meet him as desired by him. In the light of these facts, we do not see how it should be possible to hold that the dismissal of Shamsul Zaman is an act ofit is held that Shamsul Zaman was guilty of misconduct and it is found that the said conclusion is not perverse, the dismissal of the offending workman must be upheld even though the said workman may be an active worker in the union not liked by the appellant. We are making these observations on the assumption that the appellant disapproves of one union and favours the other. | 1 | 3,579 | 1,399 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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the character of the said evidence. Shamsul Zamans case was that on the day in question when he went to his seat, he found that Mohammad Mian was sitting with the salary register and was looking into it. He then asked Mohammad Mian to leave his seat, but Mohammad Mian did to like it. Then he told Mohammed Mian that he would complain about this conduct to the superior officer. Thereafter he sat down in his chair but Mohammad Mian put his hand on his collar and appeared determined to pick a quarrel. He, however, controlled his anger and expostulated with him. Thus, the version of Shamsul Zaman was that Mohammad Mian was to blame. On the other hand, Mohammad Mians side gave a contrary version. Mohammad Mian being dumb and deaf, other employees gave evidence on his behalf. Mohmood Ali Khan also gave evidence which seemed to show that both parties were partly to blame. In such a case, if the manager took the view that Shamsul Zaman was that aggressive party and Mohammad Mian who is dumb and deaf was the victim, it is difficult hold that such a conclusion is preserves. There is evidence on which this conclusion could be based. In deciding the question as to whether a particular conclusion of facts is perverse or not, industrial tribunal is not justified in weighing the evidence for itself and determining the question of the perversity of the managers view in the light of its own finding on the question of fact. What the tribunal has done in the present case is to reach its won conclusion on the merits of the case in the first instance and then address itself to the question as to whether the contrary view taken by the manager is perverse or not. It has thought that since the managers conclusion is contrary to the view which it itself is inclined to take, the said conclusion must be said to be perverse. In our opinion, this approach is entirely misconceived and unsound. Therefore, we must hold that the the tribunal was in error in taking the view that the managers conclusion was perverse.In this connexion, it is relevant to remember that the manager has referred to the previous conduct of Shamsul Zaman. On several occasions in the past, he had been warned; once in a case of theft, his increment was stopped and he was transferred to another section; then he was suspended for four days for quarreling; the manager had also written to his father complaining against his sons conduct and he had also been warned on 3 June, 1959, that if his activities, continued in the manner adopted by his, the appellant would not be able to keep him in service. It is in the light of these blemishes in his past record that the manager ultimately decided to dismiss him. It has been urged before us by Mr. Kishore that the service record of Shamsul Zaman has not been produced before the tribunal. We do not see how that makes any difference. All that the appellant was expected to do in the present proceedings was to prove that a proper enquiry had been held before Shamsul Zaman was dismissed and that has been done by leading oral evidence and producing documentary evidence in respect of the enquiry. It has not been suggested when the oral evidence was led on behalf of the appellant that the reference to the blemished past record of Shamsul Zaman was untrue and that he had, in fact, not been warned or punished in the past. Therefore, it was not necessary for the appellant to produce the service book of Shamsul Zaman.6. It is then argued by Mr. Kishore that Shamsul Zaman was not given an opportunity to meet the manager though he had requested for such an opportunity. We do not think that the requirements of natural justice made it necessary for the appellant to give Shamsul Zaman an opportunity to meet the manager. What is necessary in such cases is that a fair enquiry should be held, and such an enquiry has been held even according to the findings of the tribunal. That being so, after the report was submitted by the enquiry officer to the manager, the manager was not bound to hear Shamsul Zaman again. Besides, in point of fact, the manager did see Shamsul Zaman and did hear what he had to say. This has been mention by the manager in his own order. Mr. Kishore, however, contends that the manager admitted in his evidence that he did not give a hearing to Shamsul Zaman at any time before he passed the order of dismissal. This statement, in the context, means that he did not give a regular hearing to Shamsul Zaman; what he did was merely to see him and listen to what he had to say. We do not think that the statement on which Mr. Kishore relies can help to establish that managers order is inaccurate when it says that the manager gave Shamsul Zaman and opportunity to meet him as desired by him. In the light of these facts, we do not see how it should be possible to hold that the dismissal of Shamsul Zaman is an act of victimization. Even if the appellant may be favouring the rival union, the fact that Shamsul Zaman was an active worker in the union of whose activities the appellant the appellant does not approve, does not by itself show that the dismissal of Shamsul Zaman is an act of victimization. Once it is held that Shamsul Zaman was guilty of misconduct and it is found that the said conclusion is not perverse, the dismissal of the offending workman must be upheld even though the said workman may be an active worker in the union not liked by the appellant. We are making these observations on the assumption that the appellant disapproves of one union and favours the other.
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to the finding of the tribunal that there was no satisfactory proof about this notional depreciation, it appears that the tribunals attention was not drawn to the evidence on thiswe are satisfied that the tribunal was in error in not allowing the appellant the amount of Rs. 2, 22, 698 by way of notional normal depreciation. That being so, the available surplus which has been found by the tribunal to be Rs. 5, 12, 698 is reduced to Rs. 3, 96, 616. Roughly, the available surplus can be taken to be Rs. 4 lakhs.That raises the question as to the division of this surplus between the appellant and the respondents. The award of the tribunal shows that it gave the respondents aboutof the available surplus as determined byregard to all the circumstances, we think that it is not necessary to disturb the proportion adopted by the tribunal in dividing the available surplus between the appellant and the respondents. We would accordingly direct that in addition to about Rs. 70, 000 which has been paid by the appellant to the respondents by way of bonus for the relevant year, it should make a further payment of Rs. 63, 000 in that behalf. There has been some dispute before us as to the total amount of the wage bill of the respondents. We would, therefore, avoid making any reference to the number of months in directing the payment of bonus. The only direction we would, therefore, give is that the respondents should obtain from the appellant by way of additional bonus Rs. 63, 000 for the yeartribunal has taken the view that the order thus passed by the manager terminating the services of Shamsul Zaman was not justified and so, it has directed the reinstatement of Shamsul Zaman. Thecontends that in passing this order, the tribunal has acted beyond its jurisdiction.In reaching its conclusion that the order of dismissal was unjustified, the tribunal has been influenced by the fact that Shamsul Zaman was an active worker in the Hamdard Dawakhana Employees Union and that the appellant did not approve of the activities of this union. There is another union to which some of the appellants employees belong and that is the Union Mulazaman Hamdard Dawakhana. It appears that according to the respondents, this latter union is favoured by the appellant. The tribunal took the view that the dismissal in the present case amounted to victimization and it has also held that the finding of the manager is perverse. If the finding of the tribunal that the conclusion of the manager is perverse can be sustained, then, of course, there would be no difficulty in upholding the order of reinstatement passed by it. But we find it difficult to affirm the view taken by the tribunal that the impugned finding of the manager is perverse. As we have pointed out on several occasions in dealing with industrial disputes of this kind, an industrial tribunal would be justified in characterizing the finding recorded in the domestic enquiry as perverse only if it is shown that such a finding is not supported by any evidence, or is entirely opposed to the whole body of the evidence adduced before it. In the present case, such a conclusion is obviouslydeciding the question as to whether a particular conclusion of facts is perverse or not, industrial tribunal is not justified in weighing the evidence for itself and determining the question of the perversity of the managers view in the light of its own finding on the question of fact. What the tribunal has done in the present case is to reach its won conclusion on the merits of the case in the first instance and then address itself to the question as to whether the contrary view taken by the manager is perverse or not. It has thought that since the managers conclusion is contrary to the view which it itself is inclined to take, the said conclusion must be said to be perverse. In our opinion, this approach is entirely misconceived and unsound. Therefore, we must hold that the the tribunal was in error in taking the view that the managers conclusion wasdo not think that the requirements of natural justice made it necessary for the appellant to give Shamsul Zaman an opportunity to meet the manager. What is necessary in such cases is that a fair enquiry should be held, and such an enquiry has been held even according to the findings of the tribunal. That being so, after the report was submitted by the enquiry officer to the manager, the manager was not bound to hear Shamsul Zaman again. Besides, in point of fact, the manager did see Shamsul Zaman and did hear what he had to say. This has been mention by the manager in his own order. Mr. Kishore, however, contends that the manager admitted in his evidence that he did not give a hearing to Shamsul Zaman at any time before he passed the order of dismissal. This statement, in the context, means that he did not give a regular hearing to Shamsul Zaman; what he did was merely to see him and listen to what he had to say. We do not think that the statement on which Mr. Kishore relies can help to establish that managers order is inaccurate when it says that the manager gave Shamsul Zaman and opportunity to meet him as desired by him. In the light of these facts, we do not see how it should be possible to hold that the dismissal of Shamsul Zaman is an act ofit is held that Shamsul Zaman was guilty of misconduct and it is found that the said conclusion is not perverse, the dismissal of the offending workman must be upheld even though the said workman may be an active worker in the union not liked by the appellant. We are making these observations on the assumption that the appellant disapproves of one union and favours the other.
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Ravi Vs. Badrinarayan and Others | does not smack of a concocted case which has been filed against the driver and the owner of the vehicle only with an intention to get compensation. 20. It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimants case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground. 21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons.22. In the case in hand, the Claims Tribunal as well as the High Court, committed grave error in not appreciating the mental agony through which Suresh was passing, whose son was severely injured.23. In the light of the aforesaid discussion, we are of the considered opinion that the MACT as well as High Court committed error in coming to the conclusion that lodging the FIR belatedly would result in dismissal of the claim petition.24. Now, the question comes for consideration as to how much amount can be awarded to the Appellant. Record shows that victim is now aged about 16 years but is still prosecuting his studies in class V only. Apparently, on account of nature of injuries sustained by him, he was unable to prosecute his studies in right earnest and lagged behind in the same. Medical Board Certificate issued by Government R.D.B.P. Jaipuria Hospital, Jaipur dated 17.12.2004 shows that he has suffered the following injuries and was admitted as many as on four occasions in the hospital, intermittently : "Diagnosis: Abdominal Injury with fractured Pelvis stricture urethra with ruptured urethra couplet transacted urethra (Case No. 020762) IInd Adm. 10.11.2001 to 12.11.2001, IIIrd Adm. 27.11.01 to 12.12.01; IVth Adm. 28.12.01 to 1.1.2002."25. It is to be noted that in a case where injury sustained by victim is of permanent nature, he suffers much more than the person who succumbs to the injury. In such cases, the injured has to carry on the burden of permanent disability throughout his life, which is certainly much more painful to the victim. In the present case, the Appellant had suffered an injury of permanent nature as a result of which he is not able to control his urine. He has to suffer with it throughout his life; thus the compensation should not only be adequate but proper also.26. On account of aforesaid injury, his permanent physical disability has been assessed at 50%. This report of the experts further shows that he is unable to control urine and suffers from continence disability which could not be cured even after surgical operation and frequent dilatation still takes place.27. He has also been accordingly issued a permanent disability certificate by the said Medical Board. Therefore, the said certificate clearly establishes that Appellant had sustained permanent disability to his own body to the extent of 50% and even after several surgeries; he was not able to control his urination. We can well appreciate and imagine the problems and difficulties of a young boy aged 16 years, who is not able to control his urination and spoils his clothes even while attending school. We have been given to understand that he is required to go with additional sets of clothings so that he could change the same, in case they are spoiled. This is the state of affairs even as on date. We do not doubt the genuineness and correctness of the aforesaid certificate. Even otherwise, Respondents have also not contended that this certificate is forged or fabricated and has been obtained with an intention to get compensation.28. Thus, looking into the matter from all angles, it is clearly established that in the said accident, Appellant had suffered severe injuries of permanent nature which have not been cured till date despite several surgeries. In our most modest computation, looking into the nature of injuries which are permanent in nature, we are of the opinion that a total amount of Rs. 2,50,000 (Rs. 2.5 Lakhs) to be awarded to the Appellant payable by Respondents jointly and severally, would meet the ends of justice. The aforesaid amount would also carry interest @ 6% p.a. from the date of filing of petition till the same is actually paid. | 1[ds]21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons.22. In the case in hand, the Claims Tribunal as well as the High Court, committed grave error in not appreciating the mental agony through which Suresh was passing, whose son was severely injured.23. In the light of the aforesaid discussion, we are of the considered opinion that the MACT as well as High Court committed error in coming to the conclusion that lodging the FIR belatedly would result in dismissal of the claim petition.24. Now, the question comes for consideration as to how much amount can be awarded to the Appellant. Record shows that victim is now aged about 16 years but is still prosecuting his studies in class V only. Apparently, on account of nature of injuries sustained by him, he was unable to prosecute his studies in right earnest and lagged behind in the same. Medical Board Certificate issued by Government R.D.B.P. Jaipuria Hospital, Jaipur dated 17.12.2004 shows that he has suffered the following injuries and was admitted as many as on four occasions in the hospital, intermittently : "Diagnosis: Abdominal Injury with fractured Pelvis stricture urethra with ruptured urethra couplet transacted urethra (Case No. 020762) IInd Adm. 10.11.2001 to 12.11.2001, IIIrd Adm. 27.11.01 to 12.12.01; IVth Adm. 28.12.01 to 1.1.2002."25. It is to be noted that in a case where injury sustained by victim is of permanent nature, he suffers much more than the person who succumbs to the injury. In such cases, the injured has to carry on the burden of permanent disability throughout his life, which is certainly much more painful to the victim. In the present case, the Appellant had suffered an injury of permanent nature as a result of which he is not able to control his urine. He has to suffer with it throughout his life; thus the compensation should not only be adequate but proper also.26. On account of aforesaid injury, his permanent physical disability has been assessed at 50%. This report of the experts further shows that he is unable to control urine and suffers from continence disability which could not be cured even after surgical operation and frequent dilatation still takes place.27. He has also been accordingly issued a permanent disability certificate by the said Medical Board. Therefore, the said certificate clearly establishes that Appellant had sustained permanent disability to his own body to the extent of 50% and even after several surgeries; he was not able to control his urination. We can well appreciate and imagine the problems and difficulties of a young boy aged 16 years, who is not able to control his urination and spoils his clothes even while attending school. We have been given to understand that he is required to go with additional sets of clothings so that he could change the same, in case they are spoiled. This is the state of affairs even as on date. We do not doubt the genuineness and correctness of the aforesaid certificate. Even otherwise, Respondents have also not contended that this certificate is forged or fabricated and has been obtained with an intention to get compensation.28. Thus, looking into the matter from all angles, it is clearly established that in the said accident, Appellant had suffered severe injuries of permanent nature which have not been cured till date despite several surgeries. In our most modest computation, looking into the nature of injuries which are permanent in nature, we are of the opinion that a total amount of Rs. 2,50,000 (Rs. 2.5 Lakhs) to be awarded to the Appellant payable by Respondents jointly and severally, would meet the ends of justice. The aforesaid amount would also carry interest @ 6% p.a. from the date of filing of petition till the same is actually paid. | 1 | 3,005 | 873 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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does not smack of a concocted case which has been filed against the driver and the owner of the vehicle only with an intention to get compensation. 20. It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimants case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground. 21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons.22. In the case in hand, the Claims Tribunal as well as the High Court, committed grave error in not appreciating the mental agony through which Suresh was passing, whose son was severely injured.23. In the light of the aforesaid discussion, we are of the considered opinion that the MACT as well as High Court committed error in coming to the conclusion that lodging the FIR belatedly would result in dismissal of the claim petition.24. Now, the question comes for consideration as to how much amount can be awarded to the Appellant. Record shows that victim is now aged about 16 years but is still prosecuting his studies in class V only. Apparently, on account of nature of injuries sustained by him, he was unable to prosecute his studies in right earnest and lagged behind in the same. Medical Board Certificate issued by Government R.D.B.P. Jaipuria Hospital, Jaipur dated 17.12.2004 shows that he has suffered the following injuries and was admitted as many as on four occasions in the hospital, intermittently : "Diagnosis: Abdominal Injury with fractured Pelvis stricture urethra with ruptured urethra couplet transacted urethra (Case No. 020762) IInd Adm. 10.11.2001 to 12.11.2001, IIIrd Adm. 27.11.01 to 12.12.01; IVth Adm. 28.12.01 to 1.1.2002."25. It is to be noted that in a case where injury sustained by victim is of permanent nature, he suffers much more than the person who succumbs to the injury. In such cases, the injured has to carry on the burden of permanent disability throughout his life, which is certainly much more painful to the victim. In the present case, the Appellant had suffered an injury of permanent nature as a result of which he is not able to control his urine. He has to suffer with it throughout his life; thus the compensation should not only be adequate but proper also.26. On account of aforesaid injury, his permanent physical disability has been assessed at 50%. This report of the experts further shows that he is unable to control urine and suffers from continence disability which could not be cured even after surgical operation and frequent dilatation still takes place.27. He has also been accordingly issued a permanent disability certificate by the said Medical Board. Therefore, the said certificate clearly establishes that Appellant had sustained permanent disability to his own body to the extent of 50% and even after several surgeries; he was not able to control his urination. We can well appreciate and imagine the problems and difficulties of a young boy aged 16 years, who is not able to control his urination and spoils his clothes even while attending school. We have been given to understand that he is required to go with additional sets of clothings so that he could change the same, in case they are spoiled. This is the state of affairs even as on date. We do not doubt the genuineness and correctness of the aforesaid certificate. Even otherwise, Respondents have also not contended that this certificate is forged or fabricated and has been obtained with an intention to get compensation.28. Thus, looking into the matter from all angles, it is clearly established that in the said accident, Appellant had suffered severe injuries of permanent nature which have not been cured till date despite several surgeries. In our most modest computation, looking into the nature of injuries which are permanent in nature, we are of the opinion that a total amount of Rs. 2,50,000 (Rs. 2.5 Lakhs) to be awarded to the Appellant payable by Respondents jointly and severally, would meet the ends of justice. The aforesaid amount would also carry interest @ 6% p.a. from the date of filing of petition till the same is actually paid.
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21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons.22. In the case in hand, the Claims Tribunal as well as the High Court, committed grave error in not appreciating the mental agony through which Suresh was passing, whose son was severely injured.23. In the light of the aforesaid discussion, we are of the considered opinion that the MACT as well as High Court committed error in coming to the conclusion that lodging the FIR belatedly would result in dismissal of the claim petition.24. Now, the question comes for consideration as to how much amount can be awarded to the Appellant. Record shows that victim is now aged about 16 years but is still prosecuting his studies in class V only. Apparently, on account of nature of injuries sustained by him, he was unable to prosecute his studies in right earnest and lagged behind in the same. Medical Board Certificate issued by Government R.D.B.P. Jaipuria Hospital, Jaipur dated 17.12.2004 shows that he has suffered the following injuries and was admitted as many as on four occasions in the hospital, intermittently : "Diagnosis: Abdominal Injury with fractured Pelvis stricture urethra with ruptured urethra couplet transacted urethra (Case No. 020762) IInd Adm. 10.11.2001 to 12.11.2001, IIIrd Adm. 27.11.01 to 12.12.01; IVth Adm. 28.12.01 to 1.1.2002."25. It is to be noted that in a case where injury sustained by victim is of permanent nature, he suffers much more than the person who succumbs to the injury. In such cases, the injured has to carry on the burden of permanent disability throughout his life, which is certainly much more painful to the victim. In the present case, the Appellant had suffered an injury of permanent nature as a result of which he is not able to control his urine. He has to suffer with it throughout his life; thus the compensation should not only be adequate but proper also.26. On account of aforesaid injury, his permanent physical disability has been assessed at 50%. This report of the experts further shows that he is unable to control urine and suffers from continence disability which could not be cured even after surgical operation and frequent dilatation still takes place.27. He has also been accordingly issued a permanent disability certificate by the said Medical Board. Therefore, the said certificate clearly establishes that Appellant had sustained permanent disability to his own body to the extent of 50% and even after several surgeries; he was not able to control his urination. We can well appreciate and imagine the problems and difficulties of a young boy aged 16 years, who is not able to control his urination and spoils his clothes even while attending school. We have been given to understand that he is required to go with additional sets of clothings so that he could change the same, in case they are spoiled. This is the state of affairs even as on date. We do not doubt the genuineness and correctness of the aforesaid certificate. Even otherwise, Respondents have also not contended that this certificate is forged or fabricated and has been obtained with an intention to get compensation.28. Thus, looking into the matter from all angles, it is clearly established that in the said accident, Appellant had suffered severe injuries of permanent nature which have not been cured till date despite several surgeries. In our most modest computation, looking into the nature of injuries which are permanent in nature, we are of the opinion that a total amount of Rs. 2,50,000 (Rs. 2.5 Lakhs) to be awarded to the Appellant payable by Respondents jointly and severally, would meet the ends of justice. The aforesaid amount would also carry interest @ 6% p.a. from the date of filing of petition till the same is actually paid.
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Vikram Dhillon Vs. State Of Haryana & Orsz | infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family. In Chairman, Railway Board v. Chandrima Das, (2002) SCC 465, a poor lady was taken by railway employee to a railway guest house (Yatri Niwas) and was raped. Holding the Union of India vicariously liable, this Court held that for an act of Railway Authorities, a direction can be issued to the authorities to pay compensation to the victim and, accordingly, compensation was awarded. It was also submitted by counsel that in appropriate cases of mis-finance in public office, a direction can also be issued to erring officer(s) to pay such amount of compensation/damages personally or an order can be passed directing the authorities to recover from such officer(s) who is (are) found responsible. In Common Cause, a Registered Society v. Union of India, (1996) 6 SCC 530 , the Petroleum Minister made allotment of petrol pumps arbitrarily in favour of his relatives, friends and kiths and kins. When the matter came up before this Court, not only the allotment was cancelled, but the Court directed the Minister to pay Rs. 50 lakhs as exemplary damages to public exchequer and also Rs. 50,000/- as costs. No doubt a Review Petition was filed against the above decision in Common Cause, a Registered Society vs. Union of India, (1999) 6 SCC 593 , and the order passed earlier was recalled and direction for payment of Rs.50 lakhs was set aside. The learned counsel for the petitioner submitted that the Court in a Review Petition was not right in setting aside the direction for payment of Rs. 50 lakhs personally from the Minister concerned, particularly when the Court had recorded a finding earlier that act was illegal, improper and unconstitutional act on the part of the Minister concerned. It was also submitted that wrong test was applied by the Court in a Review by adopting analogy of criminal trial and referring to provisions of Section 405 and 409 of the Penal Code and by observing that in case of criminal breach of trust, entrustment of property was an essential ingredient, which was not proved. Though we find considerable force in the submission of the learned counsel, in the facts and circumstances of the present case, we are not inclined to enter into larger question in view of the fact that it is not necessary to do so. Since, we are of the view and have held that on September 30, 2004, the petitioner in all probability was not present and admission was granted to respondent No. 6 Anusha Singh and the first complaint was made by him as late as on October 19, 2004 by stating that he had come to know about the illegality of admission in favour of respondent No. 6 on October 17, 2004, in exercise of extraordinary powers under Article 32 of the Constitution, it would not be appropriate for this Court to award compensation to the petitioner either from the authorities or from the respondent No. 9 in his personal capacity. It is, however, open to the petitioner to take appropriate proceedings in accordance with law, if so advised. As and when such eventuality arises, the appropriate authority will pass an appropriate order in accordance with law without being inhibited or influenced by the observations made by us in this judgment. Before closing the matter, we may observe one thing more. As already noted earlier, as early as on November 16, 2005, when the matter was heard by this Court, a grievance was made by the petitioner that though he was higher in rank, admission was illegally given to respondent No. 6 who was lower in rank. It was a back door admission, sacrificing merit and was granted by Dr. (Major General) Virendra Singh, Director of Pt. B.D. Sharma Postgraduate Institute of Medical Sciences, Rohtak. The learned counsel appearing for respondent Nos. 1, 2 and 8 did not seriously dispute the allegation about the back door admission having been granted to respondent No. 6 as alleged by the petitioner. The Court further observed; "Learned counsel further states that, in fact, the said Director had granted other similar admissions as well and some enquiries are pending against him." 32. In the additional affidavit dated November 25, 2005, in para 4, it was stated by the petitioner that as a result of the grave allegation of misuse of public office by Dr. (Maj Gen.) Virendra Singh, he has been removed from the post of Director of Pt. B.D. Sharma Postgraduate Institute of Medical Sciences, Rohtak and enquiry is pending against him. After Dr. (Maj Gen.) Virendra Singh was arrayed as respondent No. 9 and had filed affidavit after the above additional affidavit filed by the petitioner, it was only stated that para No. 4 was absolutely false, wrong and was denied. It is also clear that he was not holding the post of Director when he filed the said affidavit by admitting that he had left the office. It was also the case of the State as reflected in the order dated November 16, 2005 passed by this Court that illegal admission was granted by respondent No. 9. In the circumstances, it would have been appropriate if the State had filed an affidavit placing necessary facts before this Court. It is the duty of the State Government to see not only that the officers act in consonance with law, but also to ensure that no injustice has been done to meritorious students. Unfortunately however, the State Government has not properly assisted the Court by placing the relevant facts as are expected to be placed by a public authority. But in the light of what has been stated earlier, since we are not in a position to grant relief to the petitioner, we leave the matter there. | 0[ds]The said action was totally illegal, arbitrary and malicious. The petitioner was, therefore, entitled to get admission in Government Medical College, Rohtak, when respondent No. 6 Anusha Singh was admitted. Since he was denied admission and his right was ignored, he is entitled to the difference in payment of fee at Mullana and Rohtak and also to adequate compensation. So far as the amount of compensation is concerned, the petitioner has filed additional affidavit on November 25, 2005 wherein the break-ups have been given in differential amount in tuition fee, hostel charges, etc. He has claimed Rs. 5 lacs towards loss of better exposure in terms of education and practical training in Government Dental College and better job prospects. Further amount of Rs. 5 lacs has been claimed towards acute mental and physical agony, frustration and feeling of injustice. Cost of Rs. 50,000/- is also claimed. According to the petitioner, all these amounts are required to be paid at the interest of 10% from August 18, 2004, the initial date of payment of tuition fee and hostel charges by the petitioner to respondent No.815. So far as respondent Nos. 1, 2 and 8 are concerned, initially an affidavit was filed on January 12, 2005 by Dr. (Major General) Virendra Singh, Director of Pt. B.D. Sharma Postgraduate Institute of Medical Sciences, Rohtak in the capacity of Director of the Institute. In that affidavit, the deponent stated that the petitioner had secured 128 marks and his rank was 418, but after breaking the tie of candidates who had secured 128 marks, his rank was changed from 418 to 423 which was proper and in accordance with rules. It was also stated that at the first counselling on August 9, 2004, the petitioner could not get admission in BDS course in Government Dental College, Rohtak and was admitted to M.M. Dental College, Mullana under General Category as per his merit and option. The second and third counselling were held on August 28, and September 29, 2004 respectively for filling up the vacant seats in different medical/dental colleges. The petitioner attended second and third counselling, but he neither opted for any change nor got himself wait-listed for any medical/dental college. It was then stated that on September 30, 2004, a letter was received from the Principal, Government Dental College, Rohtak regarding vacancy of three seats in Government Dental College, Rohtak due to non-deposit of fees by three selected students. September 30 was the last date for admission for the Academic Session 2004 for all Dental Colleges as held by this Court in Medical Council of India v. Madhu Singh & Ors., (2002) 7 SCC 258. It was, therefore, not possible to conduct counselling at the last moment and the only course available to the authorities was to fill three seats which remained vacant by admitting "the next wait-listed candidates". The three candidates including Anusha Singh, respondent No. 6 were, therefore, admitted on that day18. The petitioner thereafter stated that if the petitioner had not opted for any change nor had opted himself to be wait listed for any other medical/dental college, there was no reason for him to attend the second and third counselling. From the respondent No. 2s admission that the petitioner had attended the second and third counselling, it is clear that the petitioner wanted to change his college and had opted to be wait listedRegarding representation made by him to respondent No. 2, the Petitioner stated in the rejoinder-affidavit that the said representation was sent on October 19, 2004 by speed post and the same was delivered to respondent No. 2. Alongwith the affidavit in rejoinder, he had produced a copy of the original receipt dated October 19, 2004 issued by the Post Office in the nature of Confirmation Report of service upon the authority. As already stated earlier, the main grievance of the petitioner was that it was the Director who had granted illegal admission by allowing back door entry to respondent No. 6 and the said action was illegal and contrary to law. In the circumstances, the petitioner filed Interim Application No. 4 of 2005 praying for impleadment of Dr. (Major General) Virendra Singh, Ex-Director of Pt. B.D. Sharma Postgraduate Institute of Medical Sciences, Rohtak which was granted and notice was issued to him directing him to file affidavit in reply. Respondent No. 9, pursuant to the above order filed additional affidavit at a belated stage on August 23, 2006 denying the allegations of mala fide levelled against him. In the said affidavit, he had stated that since he had left the institute, he was not aware as to what was happening in the matter. He also stated that "the deponent alone has no role to play in the admission of the students in the college". He admitted about counselling which took place on August 9, August 28 and September 29, 2004. He also admitted that the last date for filling up of all the seats was September 30 and the admissions were completed. According to him, though the petitioner was at rank No. 418, he was placed at Sl. No. 423 considering the breaking up of tie. He then stated that the petitioner accepted the seat at BDS, Mullana in the first counselling, but did not request for any wait-listing in any particular college or at all. On September 29, 2004, the Counselling Committee after filling up all the available seats in all colleges, had ruled that all admissions should be completed by September 30, 2004. He then stated that in any case, the petitioner had appeared in the first counselling and got his college BDS, Maullana and did not ask for any waitlisting. He appeared in second counselling but did not seek change of the seat/college but asked for wait listing. He appeared in the third counselling also and did not seek any change and did not waitlist. There are many who took seats and wanted to waitlist and then did not change the seats25. In our opinion, there is intrinsic evidence also which goes to show that probably the petitioner was not present on September 30, 2004. Admittedly, respondent No. 6 Anusha Singh was granted admission on September 30, 2006. It is the case of the petitioner from the beginning that on or about October 17, 2004, the petitioner came to know that admission was illegally granted to respondent No. 6 though her rank was 442 and rank of petitioner was 423. He, therefore, submitted a representation on October 19, 2004. Had the petitioner been present on September 30, 2004, he would have objected to the admission of respondent No. 6. Again he would have immediately come to know about her admission. In that case, he would have instantly approached the authorities putting forward his claim, but it was not done. In fact, a representation was made for the first time after about 18 days stating therein that he came to know on October 17, 2004 that admission was given to respondent No. 6 ignoring his legitimate claim. In the circumstances, in our opinion, grant of admission to respondent No. 6 on September 30, 2004 cannot be cancelled at this stageEven though the petitioner had wait-listed himself at first counselling on August 9, 2004, and precisely for that reason, he attended the second and third counselling, overlooking his legitimate claim and without affording an opportunity to get admission, respondent No. 6 who was at rank No. 442 had been admitted. This is, therefore, eminently a fit case, submitted the learned counsel, to direct payment of compensation over and above the difference in payment of tuition fee and hostel fee for Private Dental College as against Government Dental CollegeThe lis in this case cannot be said to be a private dispute between two parties. Respondent No. 9 was acting as a public authority and since he had acted arbitrarily, maliciously and deprived the petitioner of his legitimate and rightful claim and extended un-deserved benefit to respondent No. 6, an order of payment of compensation would serve the ends of justiceWe respectfully concur with the view that the court is not helpless and the wide powers given to this Court by Article 32, which itself is a fundamental right, imposes a constitutional obligation on this Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary compensation in appropriate cases, where that is the only mode of redress available. The power available to this Court under Article 142 is also an enabling provision in this behalf. The contrary view would not merely render the court powerless and the constitutional guarantee a mirage but may, in certain situations, be an incentive to extinguish life, if for the extreme contravention the court is powerless to grant any relief against the State, except by punishment of the wrongdoer for the resulting offence, and recovery of damages under private law, by the ordinary process. It the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the have not, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriateThough we find considerable force in the submission of the learned counsel, in the facts and circumstances of the present case, we are not inclined to enter into larger question in view of the fact that it is not necessary to do so. Since, we are of the view and have held that on September 30, 2004, the petitioner in all probability was not present and admission was granted to respondent No. 6 Anusha Singh and the first complaint was made by him as late as on October 19, 2004 by stating that he had come to know about the illegality of admission in favour of respondent No. 6 on October 17, 2004, in exercise of extraordinary powers under Article 32 of the Constitution, it would not be appropriate for this Court to award compensation to the petitioner either from the authorities or from the respondent No. 9 in his personal capacity. It is, however, open to the petitioner to take appropriate proceedings in accordance with law, if so advised. As and when such eventuality arises, the appropriate authority will pass an appropriate order in accordance with law without being inhibited or influenced by the observations made by us in this judgmentBefore closing the matter, we may observe one thing more. As already noted earlier, as early as on November 16, 2005, when the matter was heard by this Court, a grievance was made by the petitioner that though he was higher in rank, admission was illegally given to respondent No. 6 who was lower in rank. It was a back door admission, sacrificing merit and was granted by Dr. (Major General) Virendra Singh, Director of Pt. B.D. Sharma Postgraduate Institute of Medical Sciences, Rohtak. The learned counsel appearing for respondent Nos. 1, 2 and 8 did not seriously dispute the allegation about the back door admission having been granted to respondent No. 6 as alleged by the petitioner. The Court further observed; "Learned counsel further states that, in fact, the said Director had granted other similar admissions as well and some enquiries are pending against him."32. In the additional affidavit dated November 25, 2005, in para 4, it was stated by the petitioner that as a result of the grave allegation of misuse of public office by Dr. (Maj Gen.) Virendra Singh, he has been removed from the post of Director of Pt. B.D. Sharma Postgraduate Institute of Medical Sciences, Rohtak and enquiry is pending against him. After Dr. (Maj Gen.) Virendra Singh was arrayed as respondent No. 9 and had filed affidavit after the above additional affidavit filed by the petitioner, it was only stated that para No. 4 was absolutely false, wrong and was denied. It is also clear that he was not holding the post of Director when he filed the said affidavit by admitting that he had left the office. It was also the case of the State as reflected in the order dated November 16, 2005 passed by this Court that illegal admission was granted by respondent No. 9. In the circumstances, it would have been appropriate if the State had filed an affidavit placing necessary facts before this Court. It is the duty of the State Government to see not only that the officers act in consonance with law, but also to ensure that no injustice has been done to meritorious students. Unfortunately however, the State Government has not properly assisted the Court by placing the relevant facts as are expected to be placed by a public authority. But in the light of what has been stated earlier, since we are not in a position to grant relief to the petitioner, we leave the matter there. | 0 | 7,737 | 2,504 | ### 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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infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family. In Chairman, Railway Board v. Chandrima Das, (2002) SCC 465, a poor lady was taken by railway employee to a railway guest house (Yatri Niwas) and was raped. Holding the Union of India vicariously liable, this Court held that for an act of Railway Authorities, a direction can be issued to the authorities to pay compensation to the victim and, accordingly, compensation was awarded. It was also submitted by counsel that in appropriate cases of mis-finance in public office, a direction can also be issued to erring officer(s) to pay such amount of compensation/damages personally or an order can be passed directing the authorities to recover from such officer(s) who is (are) found responsible. In Common Cause, a Registered Society v. Union of India, (1996) 6 SCC 530 , the Petroleum Minister made allotment of petrol pumps arbitrarily in favour of his relatives, friends and kiths and kins. When the matter came up before this Court, not only the allotment was cancelled, but the Court directed the Minister to pay Rs. 50 lakhs as exemplary damages to public exchequer and also Rs. 50,000/- as costs. No doubt a Review Petition was filed against the above decision in Common Cause, a Registered Society vs. Union of India, (1999) 6 SCC 593 , and the order passed earlier was recalled and direction for payment of Rs.50 lakhs was set aside. The learned counsel for the petitioner submitted that the Court in a Review Petition was not right in setting aside the direction for payment of Rs. 50 lakhs personally from the Minister concerned, particularly when the Court had recorded a finding earlier that act was illegal, improper and unconstitutional act on the part of the Minister concerned. It was also submitted that wrong test was applied by the Court in a Review by adopting analogy of criminal trial and referring to provisions of Section 405 and 409 of the Penal Code and by observing that in case of criminal breach of trust, entrustment of property was an essential ingredient, which was not proved. Though we find considerable force in the submission of the learned counsel, in the facts and circumstances of the present case, we are not inclined to enter into larger question in view of the fact that it is not necessary to do so. Since, we are of the view and have held that on September 30, 2004, the petitioner in all probability was not present and admission was granted to respondent No. 6 Anusha Singh and the first complaint was made by him as late as on October 19, 2004 by stating that he had come to know about the illegality of admission in favour of respondent No. 6 on October 17, 2004, in exercise of extraordinary powers under Article 32 of the Constitution, it would not be appropriate for this Court to award compensation to the petitioner either from the authorities or from the respondent No. 9 in his personal capacity. It is, however, open to the petitioner to take appropriate proceedings in accordance with law, if so advised. As and when such eventuality arises, the appropriate authority will pass an appropriate order in accordance with law without being inhibited or influenced by the observations made by us in this judgment. Before closing the matter, we may observe one thing more. As already noted earlier, as early as on November 16, 2005, when the matter was heard by this Court, a grievance was made by the petitioner that though he was higher in rank, admission was illegally given to respondent No. 6 who was lower in rank. It was a back door admission, sacrificing merit and was granted by Dr. (Major General) Virendra Singh, Director of Pt. B.D. Sharma Postgraduate Institute of Medical Sciences, Rohtak. The learned counsel appearing for respondent Nos. 1, 2 and 8 did not seriously dispute the allegation about the back door admission having been granted to respondent No. 6 as alleged by the petitioner. The Court further observed; "Learned counsel further states that, in fact, the said Director had granted other similar admissions as well and some enquiries are pending against him." 32. In the additional affidavit dated November 25, 2005, in para 4, it was stated by the petitioner that as a result of the grave allegation of misuse of public office by Dr. (Maj Gen.) Virendra Singh, he has been removed from the post of Director of Pt. B.D. Sharma Postgraduate Institute of Medical Sciences, Rohtak and enquiry is pending against him. After Dr. (Maj Gen.) Virendra Singh was arrayed as respondent No. 9 and had filed affidavit after the above additional affidavit filed by the petitioner, it was only stated that para No. 4 was absolutely false, wrong and was denied. It is also clear that he was not holding the post of Director when he filed the said affidavit by admitting that he had left the office. It was also the case of the State as reflected in the order dated November 16, 2005 passed by this Court that illegal admission was granted by respondent No. 9. In the circumstances, it would have been appropriate if the State had filed an affidavit placing necessary facts before this Court. It is the duty of the State Government to see not only that the officers act in consonance with law, but also to ensure that no injustice has been done to meritorious students. Unfortunately however, the State Government has not properly assisted the Court by placing the relevant facts as are expected to be placed by a public authority. But in the light of what has been stated earlier, since we are not in a position to grant relief to the petitioner, we leave the matter there.
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overlooking his legitimate claim and without affording an opportunity to get admission, respondent No. 6 who was at rank No. 442 had been admitted. This is, therefore, eminently a fit case, submitted the learned counsel, to direct payment of compensation over and above the difference in payment of tuition fee and hostel fee for Private Dental College as against Government Dental CollegeThe lis in this case cannot be said to be a private dispute between two parties. Respondent No. 9 was acting as a public authority and since he had acted arbitrarily, maliciously and deprived the petitioner of his legitimate and rightful claim and extended un-deserved benefit to respondent No. 6, an order of payment of compensation would serve the ends of justiceWe respectfully concur with the view that the court is not helpless and the wide powers given to this Court by Article 32, which itself is a fundamental right, imposes a constitutional obligation on this Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary compensation in appropriate cases, where that is the only mode of redress available. The power available to this Court under Article 142 is also an enabling provision in this behalf. The contrary view would not merely render the court powerless and the constitutional guarantee a mirage but may, in certain situations, be an incentive to extinguish life, if for the extreme contravention the court is powerless to grant any relief against the State, except by punishment of the wrongdoer for the resulting offence, and recovery of damages under private law, by the ordinary process. It the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the have not, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriateThough we find considerable force in the submission of the learned counsel, in the facts and circumstances of the present case, we are not inclined to enter into larger question in view of the fact that it is not necessary to do so. Since, we are of the view and have held that on September 30, 2004, the petitioner in all probability was not present and admission was granted to respondent No. 6 Anusha Singh and the first complaint was made by him as late as on October 19, 2004 by stating that he had come to know about the illegality of admission in favour of respondent No. 6 on October 17, 2004, in exercise of extraordinary powers under Article 32 of the Constitution, it would not be appropriate for this Court to award compensation to the petitioner either from the authorities or from the respondent No. 9 in his personal capacity. It is, however, open to the petitioner to take appropriate proceedings in accordance with law, if so advised. As and when such eventuality arises, the appropriate authority will pass an appropriate order in accordance with law without being inhibited or influenced by the observations made by us in this judgmentBefore closing the matter, we may observe one thing more. As already noted earlier, as early as on November 16, 2005, when the matter was heard by this Court, a grievance was made by the petitioner that though he was higher in rank, admission was illegally given to respondent No. 6 who was lower in rank. It was a back door admission, sacrificing merit and was granted by Dr. (Major General) Virendra Singh, Director of Pt. B.D. Sharma Postgraduate Institute of Medical Sciences, Rohtak. The learned counsel appearing for respondent Nos. 1, 2 and 8 did not seriously dispute the allegation about the back door admission having been granted to respondent No. 6 as alleged by the petitioner. The Court further observed; "Learned counsel further states that, in fact, the said Director had granted other similar admissions as well and some enquiries are pending against him."32. In the additional affidavit dated November 25, 2005, in para 4, it was stated by the petitioner that as a result of the grave allegation of misuse of public office by Dr. (Maj Gen.) Virendra Singh, he has been removed from the post of Director of Pt. B.D. Sharma Postgraduate Institute of Medical Sciences, Rohtak and enquiry is pending against him. After Dr. (Maj Gen.) Virendra Singh was arrayed as respondent No. 9 and had filed affidavit after the above additional affidavit filed by the petitioner, it was only stated that para No. 4 was absolutely false, wrong and was denied. It is also clear that he was not holding the post of Director when he filed the said affidavit by admitting that he had left the office. It was also the case of the State as reflected in the order dated November 16, 2005 passed by this Court that illegal admission was granted by respondent No. 9. In the circumstances, it would have been appropriate if the State had filed an affidavit placing necessary facts before this Court. It is the duty of the State Government to see not only that the officers act in consonance with law, but also to ensure that no injustice has been done to meritorious students. Unfortunately however, the State Government has not properly assisted the Court by placing the relevant facts as are expected to be placed by a public authority. But in the light of what has been stated earlier, since we are not in a position to grant relief to the petitioner, we leave the matter there.
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M/S Navodaya Mass Entertainment Ltd Vs. M/S J.M.Combines | installed the equipment on 16.04.1999 and it started functioning from the said date. The appellant defaulted in making the payments from the year 2000-2001 onwards. Despite repeated demands, the appellant failed to make the payments, hence notice was served to the appellant calling upon the appellant to pay the outstanding amount, along with interest at the rate of 24% per annum. 3. In these circumstances, dispute arose between the parties which was covered under the said Agreement by arbitration clause and accordingly an Arbitrator was appointed. The first respondent filed a claim for a sum of Rs.13,94,240/- together with interest on 16.10.2006. The Arbitrator published his award allowing the claim to the tune of Rs.13,94,240/- with interest at the rate of 12% per annum, but disallowed the Minimum Guaranteed amount of Rs.69,416/- per month for the remaining 69 months, commencing from July, 2003. Aggrieved by the award in respect of the disallowed claim, the first respondent challenged the award before the Madras High Court under by filing O.P. No.37 of 2007 and aggrieved over the entire award, the appellant challenged the same before the Madras High Court by filing O.P. No.362 of 2007 under Section 34 of the Arbitration and Conciliation Act, 1996. The learned Single Judge of the Madras High Court dismissed both these applications. Aggrieved by the order passed by the learned Single Judge of the High Court, appeals were filed by both the parties before the Division Bench of the High Court. The High Court by a common judgment and order dated 1.9.2009 dismissed the appeal filed by the appellant but allowed the appeal filed by the first respondent herein. The High Court after scrutinizing all the materials placed before it came to the conclusion that it is not in controversy that the Agreement was entered into between the parties on July 30, 1998. The parties also agreed to the ratio in which the collection of the amusement ride was to be shared and the said Agreement was in force for a period of 10 years and was also renewable. The Agreement also stipulated for a guaranteed minimum gross collection of Rs.10 lakhs for the first year and Rs.8.33 lakhs for the subsequent 9 years. 4. The Division Bench of the High Court affirmed the award of the Arbitrator. The High Court particularly held that the appellant having failed to make the payment of the dues, as agreed to between the parties, cannot deny the lawful claim of the respondent and accordingly the High Court upheld the reasoning of the Arbitrator and dismissed the appeal filed by the appellant. The Division Bench of the High Court also held that the award of interest at the rate of 12% per annum was also just and reasonable and accordingly affirmed the same. In these circumstances, the appeal filed by the first respondent, being OSA No.34 of 2009, was allowed and the appeal filed by the appellant, being OSA No.140 of 2009, was dismissed by the Division Bench of the High Court.5. We have perused the order passed by the Division Bench of the High Court. We have also heard the learned counsel for the parties. Learned counsel appearing on behalf of the appellant submitted that the Arbitrator and the Courts have failed to appreciate the fact that the claim was not on revenue sharing basis i.e. the gross income but it was on the basis of minimum guaranteed amount stated in the petitions. Learned counsel appearing on behalf of the appellant tried to argue before us that the alleged Agreement was not legal, valid and enforceable. He further submitted that the same was one-sided Agreement. He also submitted that the Division Bench of the High Court ignored and overlooked clause 14 of the Agreement which deals with the termination of the Agreement by the conduct of the parties. We are afraid that such points, as has been tried to be contended before us, it appears, were never urged before the learned Single Judge or before the Division Bench of the High Court. The dispute between the parties has been adjudicated upon by the Arbitrator and the award has been published. The Division Bench of the High Court has found that the award cannot be said to be perverse or that there is any cogent reason to set aside the same. 6. In our opinion, the scope of interference of the Court is very limited. Court would not be justified in reappraising the material on record and substituting its own view in place of the Arbitrator’s view. Where there is an error apparent on the face of the record or the Arbitrator has not followed the statutory legal position, then and then only it would be justified in interfering with the award published by the Arbitrator. Once the Arbitrator has applied his mind to the matter before him, the Court cannot reappraise the matter as if it were an appeal and even if two views are possible, the view taken by the Arbitrator would prevail. (See: Bharat Coking Coal Ltd. Vs. L.K. Ahuja, (2004) 5 SCC 109 ; Ravindra & Associates Vs. Union of India, (2010) 1 SCC 80 ; Madnani Construction Corporation Private Limited Vs. Union of India & Ors., (2010) 1 SCC 549 ; Associated Construction Vs. Pawanhans Helicopters Limited, (2008) 16 SCC 128 ; and Satna Stone & Lime Company Ltd. Vs. Union of India & Anr., (2008) 14 SCC 785.) 7. We have also perused the clauses of the said Agreement, in particular clauses 3 & 5 of the Agreement. We find that the reasoning given by the Division Bench of the High Court cannot be said to be perverse. Furthermore, the appellant never terminated the Agreement or requested the first respondent to take back the machinery. Now, at this stage it would not be proper for us to express further opinion in the matter when the matter/dispute has already been concluded by the Arbitrator and the award has been affirmed by the High Court. 8. | 0[ds]We are afraid that such points, as has been tried to be contended before us, it appears, were never urged before the learned Single Judge or before the Division Bench of the High Court. The dispute between the parties has been adjudicated upon by the Arbitrator and the award has been published. The Division Bench of the High Court has found that the award cannot be said to be perverse or that there is any cogent reason to set aside theour opinion, the scope of interference of the Court is very limited. Court would not be justified in reappraising the material on record and substituting its own view in place of theview. Where there is an error apparent on the face of the record or the Arbitrator has not followed the statutory legal position, then and then only it would be justified in interfering with the award published by the Arbitrator. Once the Arbitrator has applied his mind to the matter before him, the Court cannot reappraise the matter as if it were an appeal and even if two views are possible, the view taken by the Arbitrator would prevail. (See: Bharat Coking Coal Ltd. Vs. L.K. Ahuja, (2004) 5 SCC 109 ; Ravindra & Associates Vs. Union of India, (2010) 1 SCC 80 ; Madnani Construction Corporation Private Limited Vs. Union of India & Ors., (2010) 1 SCC 549 ; Associated Construction Vs. Pawanhans Helicopters Limited, (2008) 16 SCC 128 ; and Satna Stone & Lime Company Ltd. Vs. Union of India & Anr., (2008) 14 SCChave also perused the clauses of the said Agreement, in particular clauses 3 & 5 of the Agreement. We find that the reasoning given by the Division Bench of the High Court cannot be said to be perverse. Furthermore, the appellant never terminated the Agreement or requested the first respondent to take back the machinery. Now, at this stage it would not be proper for us to express further opinion in the matter when the matter/dispute has already been concluded by the Arbitrator and the award has been affirmed by the High Court. | 0 | 1,362 | 397 | ### 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:
installed the equipment on 16.04.1999 and it started functioning from the said date. The appellant defaulted in making the payments from the year 2000-2001 onwards. Despite repeated demands, the appellant failed to make the payments, hence notice was served to the appellant calling upon the appellant to pay the outstanding amount, along with interest at the rate of 24% per annum. 3. In these circumstances, dispute arose between the parties which was covered under the said Agreement by arbitration clause and accordingly an Arbitrator was appointed. The first respondent filed a claim for a sum of Rs.13,94,240/- together with interest on 16.10.2006. The Arbitrator published his award allowing the claim to the tune of Rs.13,94,240/- with interest at the rate of 12% per annum, but disallowed the Minimum Guaranteed amount of Rs.69,416/- per month for the remaining 69 months, commencing from July, 2003. Aggrieved by the award in respect of the disallowed claim, the first respondent challenged the award before the Madras High Court under by filing O.P. No.37 of 2007 and aggrieved over the entire award, the appellant challenged the same before the Madras High Court by filing O.P. No.362 of 2007 under Section 34 of the Arbitration and Conciliation Act, 1996. The learned Single Judge of the Madras High Court dismissed both these applications. Aggrieved by the order passed by the learned Single Judge of the High Court, appeals were filed by both the parties before the Division Bench of the High Court. The High Court by a common judgment and order dated 1.9.2009 dismissed the appeal filed by the appellant but allowed the appeal filed by the first respondent herein. The High Court after scrutinizing all the materials placed before it came to the conclusion that it is not in controversy that the Agreement was entered into between the parties on July 30, 1998. The parties also agreed to the ratio in which the collection of the amusement ride was to be shared and the said Agreement was in force for a period of 10 years and was also renewable. The Agreement also stipulated for a guaranteed minimum gross collection of Rs.10 lakhs for the first year and Rs.8.33 lakhs for the subsequent 9 years. 4. The Division Bench of the High Court affirmed the award of the Arbitrator. The High Court particularly held that the appellant having failed to make the payment of the dues, as agreed to between the parties, cannot deny the lawful claim of the respondent and accordingly the High Court upheld the reasoning of the Arbitrator and dismissed the appeal filed by the appellant. The Division Bench of the High Court also held that the award of interest at the rate of 12% per annum was also just and reasonable and accordingly affirmed the same. In these circumstances, the appeal filed by the first respondent, being OSA No.34 of 2009, was allowed and the appeal filed by the appellant, being OSA No.140 of 2009, was dismissed by the Division Bench of the High Court.5. We have perused the order passed by the Division Bench of the High Court. We have also heard the learned counsel for the parties. Learned counsel appearing on behalf of the appellant submitted that the Arbitrator and the Courts have failed to appreciate the fact that the claim was not on revenue sharing basis i.e. the gross income but it was on the basis of minimum guaranteed amount stated in the petitions. Learned counsel appearing on behalf of the appellant tried to argue before us that the alleged Agreement was not legal, valid and enforceable. He further submitted that the same was one-sided Agreement. He also submitted that the Division Bench of the High Court ignored and overlooked clause 14 of the Agreement which deals with the termination of the Agreement by the conduct of the parties. We are afraid that such points, as has been tried to be contended before us, it appears, were never urged before the learned Single Judge or before the Division Bench of the High Court. The dispute between the parties has been adjudicated upon by the Arbitrator and the award has been published. The Division Bench of the High Court has found that the award cannot be said to be perverse or that there is any cogent reason to set aside the same. 6. In our opinion, the scope of interference of the Court is very limited. Court would not be justified in reappraising the material on record and substituting its own view in place of the Arbitrator’s view. Where there is an error apparent on the face of the record or the Arbitrator has not followed the statutory legal position, then and then only it would be justified in interfering with the award published by the Arbitrator. Once the Arbitrator has applied his mind to the matter before him, the Court cannot reappraise the matter as if it were an appeal and even if two views are possible, the view taken by the Arbitrator would prevail. (See: Bharat Coking Coal Ltd. Vs. L.K. Ahuja, (2004) 5 SCC 109 ; Ravindra & Associates Vs. Union of India, (2010) 1 SCC 80 ; Madnani Construction Corporation Private Limited Vs. Union of India & Ors., (2010) 1 SCC 549 ; Associated Construction Vs. Pawanhans Helicopters Limited, (2008) 16 SCC 128 ; and Satna Stone & Lime Company Ltd. Vs. Union of India & Anr., (2008) 14 SCC 785.) 7. We have also perused the clauses of the said Agreement, in particular clauses 3 & 5 of the Agreement. We find that the reasoning given by the Division Bench of the High Court cannot be said to be perverse. Furthermore, the appellant never terminated the Agreement or requested the first respondent to take back the machinery. Now, at this stage it would not be proper for us to express further opinion in the matter when the matter/dispute has already been concluded by the Arbitrator and the award has been affirmed by the High Court. 8.
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We are afraid that such points, as has been tried to be contended before us, it appears, were never urged before the learned Single Judge or before the Division Bench of the High Court. The dispute between the parties has been adjudicated upon by the Arbitrator and the award has been published. The Division Bench of the High Court has found that the award cannot be said to be perverse or that there is any cogent reason to set aside theour opinion, the scope of interference of the Court is very limited. Court would not be justified in reappraising the material on record and substituting its own view in place of theview. Where there is an error apparent on the face of the record or the Arbitrator has not followed the statutory legal position, then and then only it would be justified in interfering with the award published by the Arbitrator. Once the Arbitrator has applied his mind to the matter before him, the Court cannot reappraise the matter as if it were an appeal and even if two views are possible, the view taken by the Arbitrator would prevail. (See: Bharat Coking Coal Ltd. Vs. L.K. Ahuja, (2004) 5 SCC 109 ; Ravindra & Associates Vs. Union of India, (2010) 1 SCC 80 ; Madnani Construction Corporation Private Limited Vs. Union of India & Ors., (2010) 1 SCC 549 ; Associated Construction Vs. Pawanhans Helicopters Limited, (2008) 16 SCC 128 ; and Satna Stone & Lime Company Ltd. Vs. Union of India & Anr., (2008) 14 SCChave also perused the clauses of the said Agreement, in particular clauses 3 & 5 of the Agreement. We find that the reasoning given by the Division Bench of the High Court cannot be said to be perverse. Furthermore, the appellant never terminated the Agreement or requested the first respondent to take back the machinery. Now, at this stage it would not be proper for us to express further opinion in the matter when the matter/dispute has already been concluded by the Arbitrator and the award has been affirmed by the High Court.
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Union of India and Ors Vs. M.K. Sarkar | by this Court. The decision in D.R.R. Sastri is of no assistance as it does not lay down any proposition that the last date prescribed for exercising option is not relevant or that option could be exercised at any time, even if a last date had been stipulated for exercise of the option. That case was decided on its peculiar facts as the employee (who was on deputation and who resigned from the service of railways on 26.6.1973 when on deputation) was not made aware of the option to which he was entitled, even though there was a specific instruction that all employees who had retired after 1.1.1973 should be informed about the option. The facts of this case are completely different. Here the employee was in service of the Railways itself before and at the time of retirement. He was working as the Head of the Department and was receiving all communications relating to option for being circulated to all employees in his department. Therefore, the question of respondent not being aware of the option does not arise. 12. The Tribunal in this case has assumed that being `aware of the scheme was not sufficient notice to a retiree to exercise the option and individual written communication was mandatory. The Tribunal was of the view that as the Railways remained unrepresented and failed to prove by positive evidence, that respondent was informed of the availability of the option, it should be assumed that there was non-compliance with the requirements relating to notice. The High Court has impliedly accepted and affirmed this view. The assumption is not sound. The Tribunal was examining the issue with reference to a case where there was a delay of 22 years. A person, who is aware of the availability of option, cannot contend that he was not served a written notice of the availability of the option after 22 years. In such a case, even if Railway administration was represented, it was not reasonable to expect the department to maintain the records of such intimation/s of individual notice to each employee after 22 years. In fact by the time the matter was considered more than nearly 27 years had elapsed. Further when notice or knowledge of the availability of the option was clearly inferable, the employee cannot after a long time (in this case 22 years) be heard to contend that in the absence of written intimation of the option, he is still entitled to exercise the option. This Court considered the meaning of `notice in Nilkantha Sidramappa Ningashetti v. Kashinath Somanna Ningashetti etc. [AIR 1962 SC 666 ]. This Court held : "We see no ground to construe the expression `date of service of notice in col. 3 of Art. 158 of the Limitation Act to mean only a notice in writing served in a formal manner. When the Legislature used the word `notice it must be presumed to have borne in mind that it means not only a formal intimation but also an informal one. Similarly, it must be deemed to have in mind the fact that service of a notice would include constructive or informal notice. If its intention were to exclude the latter sense of the words `notice and `service it would have said so explicitly." 13. Learned counsel for the respondent lastly submitted that one K.V. Kasturi who had retired in 1973, was granted the benefit of exercising the option by an order dated 19.9.1994, and therefore, principles of equality and equal opportunity required that the Railways should give him the option. The Chairman of Railway Board, while rejecting the respondents representation by order dated 15.5.2004 has clarified that K.V. Kasturis case was similar to that of D.R.R. Shastri as he had also not been informed of the availability of option. There is another angle to the issue. If someone has been wrongly extended a benefit, that cannot be cited as a precedent for claiming similar benefit by others. This court in a series of decisions has held that guarantee of equality before law under Article 14 is a positive concept and cannot be enforced in a negative manner; and that if any illegality or irregularity is committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction on courts for perpetuating the same irregularity or illegality in their favour also, on the reasoning that they have been denied the benefits which have been illegaly extended to others. See : Chandigarh Administration vs. Jagdish Singh - 1995 (1) SCC 745 ; Gursharan Singh & Ors. vs. New Delhi Municipal Committee & Ors. - 1996 (2) SCC 459 ; Faridabad C.T. Scan Centre vs. Director General, Health Services - 1997 (7) SCC 752 ; State of Haryana vs. Ram Kumar Mann - 1997 (3) SCC 321 , State of Bihar & Ors. vs. Kameshwar Prasad Singh & Anr. - 2000 (9) SCC 94 and Union of India vs. International Trading Company - 2003 (5) SCC 437. A claim on the basis of guarantee of equality, by reference to someone similarly placed, is permissible only when the person similarly placed has been lawfully granted a relief and the person claiming relief is also lawfully entitled for the same. On the other hand, where a benefit was illegally or irregularly extended to someone else, a person who is not extended a similar illegal benefit cannot approach a court for extension of a similar illegal benefit. If such a request is accepted, it would amount to perpetuating the irregularity. When a person is refused a benefit to which he is not entitled, he cannot approach the court and claim that benefit on the ground that someone else has been illegally extended such benefit. If he wants, he can challenge the benefit illegally granted to others. The fact that someone who may be not entitled to the relief has been given relief illegally is not a ground to grant relief to a person who is not entitled to the relief. | 1[ds]12. The Tribunal in this case has assumed that being `aware of the scheme was not sufficient notice to a retiree to exercise the option and individual written communication was mandatory. The Tribunal was of the view that as the Railways remained unrepresented and failed to prove by positive evidence, that respondent was informed of the availability of the option, it should be assumed that there was non-compliance with the requirements relating to notice. The High Court has impliedly accepted and affirmed this view. The assumption is not sound. The Tribunal was examining the issue with reference to a case where there was a delay of 22 years. A person, who is aware of the availability of option, cannot contend that he was not served a written notice of the availability of the option after 22 years. In such a case, even if Railway administration was represented, it was not reasonable to expect the department to maintain the records of such intimation/s of individual notice to each employee after 22 years. In fact by the time the matter was considered more than nearly 27 years had elapsed.This court in a series of decisions has held that guarantee of equality before law under Article 14 is a positive concept and cannot be enforced in a negative manner; and that if any illegality or irregularity is committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction on courts for perpetuating the same irregularity or illegality in their favour also, on the reasoning that they have been denied the benefits which have been illegaly extended to others. See : Chandigarh Administration vs. Jagdish Singh - 1995 (1) SCC 745 ; Gursharan Singh & Ors. vs. New Delhi Municipal Committee & Ors. - 1996 (2) SCC 459 ; Faridabad C.T. Scan Centre vs. Director General, Health Services - 1997 (7) SCC 752 ; State of Haryana vs. Ram Kumar Mann - 1997 (3) SCC 321 , State of Bihar & Ors. vs. Kameshwar Prasad Singh & Anr. - 2000 (9) SCC 94 and Union of India vs. International Trading Company - 2003 (5) SCC 437. A claim on the basis of guarantee of equality, by reference to someone similarly placed, is permissible only when the person similarly placed has been lawfully granted a relief and the person claiming relief is also lawfully entitled for the same. On the other hand, where a benefit was illegally or irregularly extended to someone else, a person who is not extended a similar illegal benefit cannot approach a court for extension of a similar illegal benefit. If such a request is accepted, it would amount to perpetuating the irregularity. When a person is refused a benefit to which he is not entitled, he cannot approach the court and claim that benefit on the ground that someone else has been illegally extended such benefit. If he wants, he can challenge the benefit illegally granted to others. The fact that someone who may be not entitled to the relief has been given relief illegally is not a ground to grant relief to a person who is not entitled to the relief | 1 | 4,349 | 585 | ### 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:
by this Court. The decision in D.R.R. Sastri is of no assistance as it does not lay down any proposition that the last date prescribed for exercising option is not relevant or that option could be exercised at any time, even if a last date had been stipulated for exercise of the option. That case was decided on its peculiar facts as the employee (who was on deputation and who resigned from the service of railways on 26.6.1973 when on deputation) was not made aware of the option to which he was entitled, even though there was a specific instruction that all employees who had retired after 1.1.1973 should be informed about the option. The facts of this case are completely different. Here the employee was in service of the Railways itself before and at the time of retirement. He was working as the Head of the Department and was receiving all communications relating to option for being circulated to all employees in his department. Therefore, the question of respondent not being aware of the option does not arise. 12. The Tribunal in this case has assumed that being `aware of the scheme was not sufficient notice to a retiree to exercise the option and individual written communication was mandatory. The Tribunal was of the view that as the Railways remained unrepresented and failed to prove by positive evidence, that respondent was informed of the availability of the option, it should be assumed that there was non-compliance with the requirements relating to notice. The High Court has impliedly accepted and affirmed this view. The assumption is not sound. The Tribunal was examining the issue with reference to a case where there was a delay of 22 years. A person, who is aware of the availability of option, cannot contend that he was not served a written notice of the availability of the option after 22 years. In such a case, even if Railway administration was represented, it was not reasonable to expect the department to maintain the records of such intimation/s of individual notice to each employee after 22 years. In fact by the time the matter was considered more than nearly 27 years had elapsed. Further when notice or knowledge of the availability of the option was clearly inferable, the employee cannot after a long time (in this case 22 years) be heard to contend that in the absence of written intimation of the option, he is still entitled to exercise the option. This Court considered the meaning of `notice in Nilkantha Sidramappa Ningashetti v. Kashinath Somanna Ningashetti etc. [AIR 1962 SC 666 ]. This Court held : "We see no ground to construe the expression `date of service of notice in col. 3 of Art. 158 of the Limitation Act to mean only a notice in writing served in a formal manner. When the Legislature used the word `notice it must be presumed to have borne in mind that it means not only a formal intimation but also an informal one. Similarly, it must be deemed to have in mind the fact that service of a notice would include constructive or informal notice. If its intention were to exclude the latter sense of the words `notice and `service it would have said so explicitly." 13. Learned counsel for the respondent lastly submitted that one K.V. Kasturi who had retired in 1973, was granted the benefit of exercising the option by an order dated 19.9.1994, and therefore, principles of equality and equal opportunity required that the Railways should give him the option. The Chairman of Railway Board, while rejecting the respondents representation by order dated 15.5.2004 has clarified that K.V. Kasturis case was similar to that of D.R.R. Shastri as he had also not been informed of the availability of option. There is another angle to the issue. If someone has been wrongly extended a benefit, that cannot be cited as a precedent for claiming similar benefit by others. This court in a series of decisions has held that guarantee of equality before law under Article 14 is a positive concept and cannot be enforced in a negative manner; and that if any illegality or irregularity is committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction on courts for perpetuating the same irregularity or illegality in their favour also, on the reasoning that they have been denied the benefits which have been illegaly extended to others. See : Chandigarh Administration vs. Jagdish Singh - 1995 (1) SCC 745 ; Gursharan Singh & Ors. vs. New Delhi Municipal Committee & Ors. - 1996 (2) SCC 459 ; Faridabad C.T. Scan Centre vs. Director General, Health Services - 1997 (7) SCC 752 ; State of Haryana vs. Ram Kumar Mann - 1997 (3) SCC 321 , State of Bihar & Ors. vs. Kameshwar Prasad Singh & Anr. - 2000 (9) SCC 94 and Union of India vs. International Trading Company - 2003 (5) SCC 437. A claim on the basis of guarantee of equality, by reference to someone similarly placed, is permissible only when the person similarly placed has been lawfully granted a relief and the person claiming relief is also lawfully entitled for the same. On the other hand, where a benefit was illegally or irregularly extended to someone else, a person who is not extended a similar illegal benefit cannot approach a court for extension of a similar illegal benefit. If such a request is accepted, it would amount to perpetuating the irregularity. When a person is refused a benefit to which he is not entitled, he cannot approach the court and claim that benefit on the ground that someone else has been illegally extended such benefit. If he wants, he can challenge the benefit illegally granted to others. The fact that someone who may be not entitled to the relief has been given relief illegally is not a ground to grant relief to a person who is not entitled to the relief.
### Response:
1
### Explanation:
12. The Tribunal in this case has assumed that being `aware of the scheme was not sufficient notice to a retiree to exercise the option and individual written communication was mandatory. The Tribunal was of the view that as the Railways remained unrepresented and failed to prove by positive evidence, that respondent was informed of the availability of the option, it should be assumed that there was non-compliance with the requirements relating to notice. The High Court has impliedly accepted and affirmed this view. The assumption is not sound. The Tribunal was examining the issue with reference to a case where there was a delay of 22 years. A person, who is aware of the availability of option, cannot contend that he was not served a written notice of the availability of the option after 22 years. In such a case, even if Railway administration was represented, it was not reasonable to expect the department to maintain the records of such intimation/s of individual notice to each employee after 22 years. In fact by the time the matter was considered more than nearly 27 years had elapsed.This court in a series of decisions has held that guarantee of equality before law under Article 14 is a positive concept and cannot be enforced in a negative manner; and that if any illegality or irregularity is committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction on courts for perpetuating the same irregularity or illegality in their favour also, on the reasoning that they have been denied the benefits which have been illegaly extended to others. See : Chandigarh Administration vs. Jagdish Singh - 1995 (1) SCC 745 ; Gursharan Singh & Ors. vs. New Delhi Municipal Committee & Ors. - 1996 (2) SCC 459 ; Faridabad C.T. Scan Centre vs. Director General, Health Services - 1997 (7) SCC 752 ; State of Haryana vs. Ram Kumar Mann - 1997 (3) SCC 321 , State of Bihar & Ors. vs. Kameshwar Prasad Singh & Anr. - 2000 (9) SCC 94 and Union of India vs. International Trading Company - 2003 (5) SCC 437. A claim on the basis of guarantee of equality, by reference to someone similarly placed, is permissible only when the person similarly placed has been lawfully granted a relief and the person claiming relief is also lawfully entitled for the same. On the other hand, where a benefit was illegally or irregularly extended to someone else, a person who is not extended a similar illegal benefit cannot approach a court for extension of a similar illegal benefit. If such a request is accepted, it would amount to perpetuating the irregularity. When a person is refused a benefit to which he is not entitled, he cannot approach the court and claim that benefit on the ground that someone else has been illegally extended such benefit. If he wants, he can challenge the benefit illegally granted to others. The fact that someone who may be not entitled to the relief has been given relief illegally is not a ground to grant relief to a person who is not entitled to the relief
|
Vodafone Idea Limited and Ors Vs. The Union of India and Ors | applies squarely to the facts of the present case before us. Once the ratio is applied, it can be easily seen that the service recipient is the foreign telecom service provider and not the subscriber of the foreign telecom service provider who is roaming in India. 2. CST v Bayer Material Science (2015) 38 STR 1206 (Tri-Mumbai) (para 7) 7. A similar issue came up before this Tribunal in the case of Vodafone Essar Cellular Ltd v. CCE, Pune-III - 2012(31) S.T.R. 738 wherein it was held that the telecom service provided in India to international inbound roamers registered with foreign telecom network operator, payment received from impugned foreign telecom operators in convertible foreign exchange, in that set of facts this Tribunal has held that the service have been provided outside India as an export of service. In this case, the respondent is in a better footing that in the case of Vodafone Essar Cellular Ltd. (supra) wherein it was held that the service recipient is the foreign telecom service-provider and not the subscriber of the foreign telecom service in India and providing service in India and it is a case of export of service. In the circumstances, I hold that the learned Commissioner (Appeals) has rightly held that the case of export of service as per Rule 3(1) (iii) of Export of Services Rules, 2005. In the circumstances, I do not find any infirmity with the impugned order and the same is upheld. The appeal filed by the Revenue is dismissed. 3. ABS India Ltd. v CST (2009) 13 STR 65 (Tri Bang) (para 4) The appellant is a company incorporated in India. They have a subsidiary company in Singapore. The appellant booked orders for the sales of the goods manufactured by the subsidiary situated in Singapore. For this purpose, they received certain commission and initially they paid the Service Tax. Later they realized that as they had exported the service, they would not be liable to pay Service Tax. Hence, they requested for refund of the amount. The refund was rejected by the Original Authority. The rejection order has been upheld by the Appellate Authority. Both the Original Authority and Appellate Authority have held that the service has been rendered in India and it has been utilized delivered in India and it is also used in India. The learned Advocate strongly argued that the understanding of the lower authority is not correct, the services have rightly been delivered abroad and they have been used by the Singapore Company. They relied on several case laws. They also stated that it should not be considered that the appellant and the company in Singapore are related, even though one is a subsidiary of the other, they are separate legal entities. They produced a large number of case laws on this subject. They also relied on the decision of this Tribunal in the case of M/s. Blue Star v. CCE vide Final Order No. 489/2008, dated 27-3-2008 [2008 (11) S.T.R.23] (Tribunal), wherein a similar situation was dealt with. The situation here also is similar. In this case, the Indian company is the principal and the Singapore Company is a subsidiary. The appellant is the Indian Company, booked certain orders for the Singapore Company. It cannot be said that these booking of the orders indicate service being rendered in India. It is not correct. And also because the appellant books the orders for the Singapore Company, we have to consider that the service is delivered only to the Singapore Company. The recipient of the service is a Singapore Company. When the recipient of the service is Singapore Company, it cannot be said that service is delivered in India and the benefit of the service is derived only by the recipient company. Because of the booking of the orders, the Singapore Company gets business. Therefore, the service is also utilized abroad. In terms of Rule 3(2) of the Export of Services Rules, 2005 the service rendered is indeed a service, which has been exported. In such circumstances, the appellant is not required to pay the service tax. There is absolutely no merit in the impugned order. Hence, we allow the appeal with consequential relief. 22. In our opinion, therefore Vodafone Idea Limited has provided services to FTOs and not to the individual subscribers of FTOs. Therefore Section 13(3)(b) is not attracted. Section 13(3)(b) on which reliance has been placed by the Deputy Commissioner is not applicable. 23. As per Section 13(2) of the IGST, the place of supply of services, except the services specified in sub-sections (3) to (13), shall be the location of the recipient of services. As discussed earlier, the recipients of the services is the FTO. We find that Vodafone Idea Limited has not supplied services specified in sub-sections (3) to (13) of Section 13. Therefore, the place of service or supply of service supplied by Vodafone Idea Limited is the location of recipient of the service, i.e., location of the FTO, which is outside India. 24. Mr. Mishra submitted that the subscriber and FTO are acting on behalf of each other. In this regard, there is nothing to substantiate that the subscriber is acting on behalf of the FTO. The relationship between the FTO and the subscriber is on principal to principal basis and not on principal and agent basis. In this case, if the subscriber notices any deficiency in service he cannot talk directly to Vodafone Idea Ltd as representative of the FTO. The subscriber has to approach the FTO for the purpose of rectifying the deficiency. We find that this itself would substantiate that the subscriber is not representative or agent of the FTO. Further, we find no evidence to substantiate that the FTO has authorised its subscriber to be its representative. 25. From the above, it is therefore evident that in the instant case, sub-section(2) of Section 13 is applicable and not sub-section (3)(b) of Section 13. Therefore, performance of services has no relevance in this case. | 0[ds]We have considered the said order-in-original passed on 19.07.2021 by the Deputy Commissioner of CGST & Central Excise Commissionerate and also the order in appeal dated 18.08.2021 passed by the Joint Commissioner (Appeals) and in our view the order passed in appeal by the Joint Commissioner (Appeals) is the correct order.19. As per clause (a) of Section 2(93) of the CGST Act, recipient means where the consideration is payable for supply of goods or service, the person who is liable to pay the consideration. Clauses (b) and (c) of Section 2(93) is applicable when no consideration is payable. In this case consideration is payable by the FTO for the services rendered to it. We find the adjudicating authority in his orders does refer to the terms of agreements with FTO. The services are rendered under agreements with the service recipients and according to the agreement, Vodafone Idea Ltd is contractually obligated only to the FTOs for the services under the agreement; the consideration is payable by the FTOs and the consideration is payable in convertible foreign exchange. There is no mention of any agreement with subscriber of FTO. Vodafone Idea Ltd has reiterated that there is no contract with subscriber of FTO making it liable to pay value of service to Vodafone Idea Ltd. We find that practically it is impossible for Vodafone Idea Ltd to have contract with subscriber of FTO. Therefore, the subscriber is not liable to make any payment to Vodafone Idea Ltd. In the impugned order it is stated as per the agreement reproduced in para 16.1 (Appeal No.257/2021) and 13.1 (Appeal No.258/2021) of the impugned orders with M/s. Cello Partnership or M/s. Verizon Wireless USA D/B/A, for provision of service is payable by FTO. This is not controverted by Revenue. It is a fact that payment is received from FTO. Hence, subscriber of the FTO cannot be considered as recipient of service as held by Adjudicating Authority. FTO is undoubtedly the recipient of service.The provision of section 13(3)(b) is applicable in the case where services are supplied to an individual as Section 13(3) (b) starts with the words service supplied to an individual. We find that in the instant case the said services were supplied to FTO and not to an individual. The FTO had supplied services to their subscriber (individual). Here, the supplier of services is Vodafone Idea Ltd and the recipient of the service is FTO as discussed above. Further, Vodafone Idea Ltd has no idea of subscribers of FTO and therefore question of supplying service to an individual (subscribers) does not arise. Vodafone Idea Ltd had issued invoices to FTO and not to any individual which substantiates that services were not provided to an individual.21. We would agree with the concept that customers customer cannot be your customer. In the case at hand customer of Vodafone Idea Limited is the FTO and the subscribers of FTO are the customers of FTO. When a service is rendered to a third party customer of FTOyour customer, the service recipient is your customer and not the third party customer of FTO. These issues have been considered by the Central Excise and Service Tax Appellate Tribunal (CESTAT Act), West Zonal Branch, Mumbai and one of Banglore Tribunal. We accept the views expressed and law laid down by the Tribunals. The relevant portion reads as under :-1. Vodafone Essar Cellular Ltd. V. CCE ((2013) (31)STR 738(Tri-Mum)) (para 5.1, 5.2, 5.3 & 5.4)5.1. We have perused the agreement entered into between the appellant and the foreign telecom service providers. As per the said agreement, the appellant has agreed to provide telecom services to the customer of the foreign telecom service provider while he is in India using the appellants telecom net work. The consideration for the service rendered is paid by the foreign service provider. There is no contract/agreement between the appellant and the subscriber of the foreign telecom service provider to provide any service. Since the contract for supply of service is between the appellant and foreign telecom service provider who pays for the services rendered, it is the foreign telecom service provider who is the recipient of the service. From the provisions of law relating to GST in UK and Australia, relied upon by the appellant, this position becomes very clear. Your customers customer is not your customer. When a service is rendered to a third party at the behest of your customer, the service recipient is your customer and not the third party. For example, when a florist delivers a bouquet on your request to your friend for which you make the payment, as far as the florist is concerned you are the customer and not your friend.5.2. Export of Service Rules, 2005 defines export in respect of taxable services. For this purpose, the services have been categorized into 3. Category I deals with specified services provided in relation to an immovable property situated in India. Category II deals with specified taxable services where such taxable service is partly performed outside India and states that when it is partly performed outside India, it shall be treated as performed outside India. Category III deals with services not covered under category I and II. The telecom services fall under category III. As far as category III services are concerned, the transaction shall be construed as export when provided in relation to business or commerce to a recipient located outside India and when provided otherwise to a recipient located outside India at the time of provision of such service. The additional conditions required to be satisfied are such services as are provided from India and used outside India; and consideration for the service rendered is received in convertible foreign exchange. As observed earlier, the service is rendered to a foreign telecom service provider who is located outside India and therefore, the transaction constitutes export and we hold accordingly.5.3. The Boards clarification vide Circular No. 111/5/2009-S.T., dated 24-2-2009 makes this position very clear. Para 3 of the Circular which is relevant is reproduced verbatim below:-3. It is an accepted legal principle that the law has to be read harmoniously so as to avoid contradictions within a legislation. Keeping this principle in view, the meaning of the term used outside India has to be understood in the context of the characteristics of a particular category of service as mentioned in sub-rule (1) of rule 3. For example, under Architect service (a category I service [Rule 3(1)(i)]), even if an Indian architect prepares a design sitting in India for a property located in U.K. and hands it over to the owner of such property having his business and residence in India, it would have to be presumed that service has been used outside India. Similarly, if an Indian event manager (a category II service [Rule 3(1)(ii)]) arranges a seminar for an Indian company in U.K., the service has to be treated have been used outside India because the place of performance is U.K. even though the benefit of such a seminar may flow back to the employee serving the company in India. For the services that fall under Category III [Rule 3(1) (iii)], the relevant factor is the location of the service provider and not the place of performance. In this context, the phrase used outside India is to be interpreted to mean that the benefit of the service accrues outside India. Thus for category III services, it is possible that export of service may take place even when all the relevant activities take place in India so long as the benefits of these services accrue outside India.Thus what emerges from the above circular is that when the appellant rendered the telecom service in the context of international roaming, the benefit accrued to the foreign telecom service provider who is located outside India since the foreign telecom service provider could bill his subscriber for the services rendered. This is the practice followed in India also. When an Indian subscriber to, say, MTNL/BSNL goes abroad and uses the roaming facility, it is the MTNL/BSNL who charges the subscriber for the telecom services including service tax, even though the service is rendered abroad by the foreign telecom service provider as per the agreement with MTNL/BSNL.5.4 The Paul Merchants case (supra) relied upon by the appellant dealt with an identical case. The question before the Tribunal in that case was when Agents/Sub-agents in India of Western Union Financial Services, Panama, makes payments to an Indian beneficiary on behalf of the customer of Western Union in foreign country, whether the services rendered by the Indian Agents/Sub-agents should be treated as export or not under Export of Service Rules, 2005. By a majority decision, it was held that the service being provided by the agents and sub-agents is delivery of money to the intended beneficiaries of the customers of Western Union abroad and this service is business auxiliary service, being provided to Western Union. It is the Western Union who is the recipient and consumer of this service provided by their Agents and sub-agents, not the persons receiving money in India. The ratio of the said decision applies squarely to the facts of the present case before us. Once the ratio is applied, it can be easily seen that the service recipient is the foreign telecom service provider and not the subscriber of the foreign telecom service provider who is roaming in India.2. CST v Bayer Material Science (2015) 38 STR 1206 (Tri-Mumbai) (para 7)7. A similar issue came up before this Tribunal in the case of Vodafone Essar Cellular Ltd v. CCE, Pune-III - 2012(31) S.T.R. 738 wherein it was held that the telecom service provided in India to international inbound roamers registered with foreign telecom network operator, payment received from impugned foreign telecom operators in convertible foreign exchange, in that set of facts this Tribunal has held that the service have been provided outside India as an export of service. In this case, the respondent is in a better footing that in the case of Vodafone Essar Cellular Ltd. (supra) wherein it was held that the service recipient is the foreign telecom service-provider and not the subscriber of the foreign telecom service in India and providing service in India and it is a case of export of service. In the circumstances, I hold that the learned Commissioner (Appeals) has rightly held that the case of export of service as per Rule 3(1) (iii) of Export of Services Rules, 2005. In the circumstances, I do not find any infirmity with the impugned order and the same is upheld. The appeal filed by the Revenue is dismissed.3. ABS India Ltd. v CST (2009) 13 STR 65 (Tri Bang) (para 4)The appellant is a company incorporated in India. They have a subsidiary company in Singapore. The appellant booked orders for the sales of the goods manufactured by the subsidiary situated in Singapore. For this purpose, they received certain commission and initially they paid the Service Tax. Later they realized that as they had exported the service, they would not be liable to pay Service Tax. Hence, they requested for refund of the amount. The refund was rejected by the Original Authority. The rejection order has been upheld by the Appellate Authority. Both the Original Authority and Appellate Authority have held that the service has been rendered in India and it has been utilized delivered in India and it is also used in India. The learned Advocate strongly argued that the understanding of the lower authority is not correct, the services have rightly been delivered abroad and they have been used by the Singapore Company. They relied on several case laws. They also stated that it should not be considered that the appellant and the company in Singapore are related, even though one is a subsidiary of the other, they are separate legal entities. They produced a large number of case laws on this subject. They also relied on the decision of this Tribunal in the case of M/s. Blue Star v. CCE vide Final Order No. 489/2008, dated 27-3-2008 [2008 (11) S.T.R.23] (Tribunal), wherein a similar situation was dealt with. The situation here also is similar. In this case, the Indian company is the principal and the Singapore Company is a subsidiary. The appellant is the Indian Company, booked certain orders for the Singapore Company. It cannot be said that these booking of the orders indicate service being rendered in India. It is not correct. And also because the appellant books the orders for the Singapore Company, we have to consider that the service is delivered only to the Singapore Company. The recipient of the service is a Singapore Company. When the recipient of the service is Singapore Company, it cannot be said that service is delivered in India and the benefit of the service is derived only by the recipient company. Because of the booking of the orders, the Singapore Company gets business. Therefore, the service is also utilized abroad. In terms of Rule 3(2) of the Export of Services Rules, 2005 the service rendered is indeed a service, which has been exported. In such circumstances, the appellant is not required to pay the service tax. There is absolutely no merit in the impugned order. Hence, we allow the appeal with consequential relief.22. In our opinion, therefore Vodafone Idea Limited has provided services to FTOs and not to the individual subscribers of FTOs. Therefore Section 13(3)(b) is not attracted. Section 13(3)(b) on which reliance has been placed by the Deputy Commissioner is not applicable.23. As per Section 13(2) of the IGST, the place of supply of services, except the services specified in sub-sections (3) to (13), shall be the location of the recipient of services. As discussed earlier, the recipients of the services is the FTO. We find that Vodafone Idea Limited has not supplied services specified in sub-sections (3) to (13) of Section 13. Therefore, the place of service or supply of service supplied by Vodafone Idea Limited is the location of recipient of the service, i.e., location of the FTO, which is outside India.In this regard, there is nothing to substantiate that the subscriber is acting on behalf of the FTO. The relationship between the FTO and the subscriber is on principal to principal basis and not on principal and agent basis. In this case, if the subscriber notices any deficiency in service he cannot talk directly to Vodafone Idea Ltd as representative of the FTO. The subscriber has to approach the FTO for the purpose of rectifying the deficiency. We find that this itself would substantiate that the subscriber is not representative or agent of the FTO. Further, we find no evidence to substantiate that the FTO has authorised its subscriber to be its representative.25. From the above, it is therefore evident that in the instant case, sub-section(2) of Section 13 is applicable and not sub-section (3)(b) of Section 13. Therefore, performance of services has no relevance in this case. | 0 | 6,934 | 2,861 | ### 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:
applies squarely to the facts of the present case before us. Once the ratio is applied, it can be easily seen that the service recipient is the foreign telecom service provider and not the subscriber of the foreign telecom service provider who is roaming in India. 2. CST v Bayer Material Science (2015) 38 STR 1206 (Tri-Mumbai) (para 7) 7. A similar issue came up before this Tribunal in the case of Vodafone Essar Cellular Ltd v. CCE, Pune-III - 2012(31) S.T.R. 738 wherein it was held that the telecom service provided in India to international inbound roamers registered with foreign telecom network operator, payment received from impugned foreign telecom operators in convertible foreign exchange, in that set of facts this Tribunal has held that the service have been provided outside India as an export of service. In this case, the respondent is in a better footing that in the case of Vodafone Essar Cellular Ltd. (supra) wherein it was held that the service recipient is the foreign telecom service-provider and not the subscriber of the foreign telecom service in India and providing service in India and it is a case of export of service. In the circumstances, I hold that the learned Commissioner (Appeals) has rightly held that the case of export of service as per Rule 3(1) (iii) of Export of Services Rules, 2005. In the circumstances, I do not find any infirmity with the impugned order and the same is upheld. The appeal filed by the Revenue is dismissed. 3. ABS India Ltd. v CST (2009) 13 STR 65 (Tri Bang) (para 4) The appellant is a company incorporated in India. They have a subsidiary company in Singapore. The appellant booked orders for the sales of the goods manufactured by the subsidiary situated in Singapore. For this purpose, they received certain commission and initially they paid the Service Tax. Later they realized that as they had exported the service, they would not be liable to pay Service Tax. Hence, they requested for refund of the amount. The refund was rejected by the Original Authority. The rejection order has been upheld by the Appellate Authority. Both the Original Authority and Appellate Authority have held that the service has been rendered in India and it has been utilized delivered in India and it is also used in India. The learned Advocate strongly argued that the understanding of the lower authority is not correct, the services have rightly been delivered abroad and they have been used by the Singapore Company. They relied on several case laws. They also stated that it should not be considered that the appellant and the company in Singapore are related, even though one is a subsidiary of the other, they are separate legal entities. They produced a large number of case laws on this subject. They also relied on the decision of this Tribunal in the case of M/s. Blue Star v. CCE vide Final Order No. 489/2008, dated 27-3-2008 [2008 (11) S.T.R.23] (Tribunal), wherein a similar situation was dealt with. The situation here also is similar. In this case, the Indian company is the principal and the Singapore Company is a subsidiary. The appellant is the Indian Company, booked certain orders for the Singapore Company. It cannot be said that these booking of the orders indicate service being rendered in India. It is not correct. And also because the appellant books the orders for the Singapore Company, we have to consider that the service is delivered only to the Singapore Company. The recipient of the service is a Singapore Company. When the recipient of the service is Singapore Company, it cannot be said that service is delivered in India and the benefit of the service is derived only by the recipient company. Because of the booking of the orders, the Singapore Company gets business. Therefore, the service is also utilized abroad. In terms of Rule 3(2) of the Export of Services Rules, 2005 the service rendered is indeed a service, which has been exported. In such circumstances, the appellant is not required to pay the service tax. There is absolutely no merit in the impugned order. Hence, we allow the appeal with consequential relief. 22. In our opinion, therefore Vodafone Idea Limited has provided services to FTOs and not to the individual subscribers of FTOs. Therefore Section 13(3)(b) is not attracted. Section 13(3)(b) on which reliance has been placed by the Deputy Commissioner is not applicable. 23. As per Section 13(2) of the IGST, the place of supply of services, except the services specified in sub-sections (3) to (13), shall be the location of the recipient of services. As discussed earlier, the recipients of the services is the FTO. We find that Vodafone Idea Limited has not supplied services specified in sub-sections (3) to (13) of Section 13. Therefore, the place of service or supply of service supplied by Vodafone Idea Limited is the location of recipient of the service, i.e., location of the FTO, which is outside India. 24. Mr. Mishra submitted that the subscriber and FTO are acting on behalf of each other. In this regard, there is nothing to substantiate that the subscriber is acting on behalf of the FTO. The relationship between the FTO and the subscriber is on principal to principal basis and not on principal and agent basis. In this case, if the subscriber notices any deficiency in service he cannot talk directly to Vodafone Idea Ltd as representative of the FTO. The subscriber has to approach the FTO for the purpose of rectifying the deficiency. We find that this itself would substantiate that the subscriber is not representative or agent of the FTO. Further, we find no evidence to substantiate that the FTO has authorised its subscriber to be its representative. 25. From the above, it is therefore evident that in the instant case, sub-section(2) of Section 13 is applicable and not sub-section (3)(b) of Section 13. Therefore, performance of services has no relevance in this case.
### Response:
0
### Explanation:
and consumer of this service provided by their Agents and sub-agents, not the persons receiving money in India. The ratio of the said decision applies squarely to the facts of the present case before us. Once the ratio is applied, it can be easily seen that the service recipient is the foreign telecom service provider and not the subscriber of the foreign telecom service provider who is roaming in India.2. CST v Bayer Material Science (2015) 38 STR 1206 (Tri-Mumbai) (para 7)7. A similar issue came up before this Tribunal in the case of Vodafone Essar Cellular Ltd v. CCE, Pune-III - 2012(31) S.T.R. 738 wherein it was held that the telecom service provided in India to international inbound roamers registered with foreign telecom network operator, payment received from impugned foreign telecom operators in convertible foreign exchange, in that set of facts this Tribunal has held that the service have been provided outside India as an export of service. In this case, the respondent is in a better footing that in the case of Vodafone Essar Cellular Ltd. (supra) wherein it was held that the service recipient is the foreign telecom service-provider and not the subscriber of the foreign telecom service in India and providing service in India and it is a case of export of service. In the circumstances, I hold that the learned Commissioner (Appeals) has rightly held that the case of export of service as per Rule 3(1) (iii) of Export of Services Rules, 2005. In the circumstances, I do not find any infirmity with the impugned order and the same is upheld. The appeal filed by the Revenue is dismissed.3. ABS India Ltd. v CST (2009) 13 STR 65 (Tri Bang) (para 4)The appellant is a company incorporated in India. They have a subsidiary company in Singapore. The appellant booked orders for the sales of the goods manufactured by the subsidiary situated in Singapore. For this purpose, they received certain commission and initially they paid the Service Tax. Later they realized that as they had exported the service, they would not be liable to pay Service Tax. Hence, they requested for refund of the amount. The refund was rejected by the Original Authority. The rejection order has been upheld by the Appellate Authority. Both the Original Authority and Appellate Authority have held that the service has been rendered in India and it has been utilized delivered in India and it is also used in India. The learned Advocate strongly argued that the understanding of the lower authority is not correct, the services have rightly been delivered abroad and they have been used by the Singapore Company. They relied on several case laws. They also stated that it should not be considered that the appellant and the company in Singapore are related, even though one is a subsidiary of the other, they are separate legal entities. They produced a large number of case laws on this subject. They also relied on the decision of this Tribunal in the case of M/s. Blue Star v. CCE vide Final Order No. 489/2008, dated 27-3-2008 [2008 (11) S.T.R.23] (Tribunal), wherein a similar situation was dealt with. The situation here also is similar. In this case, the Indian company is the principal and the Singapore Company is a subsidiary. The appellant is the Indian Company, booked certain orders for the Singapore Company. It cannot be said that these booking of the orders indicate service being rendered in India. It is not correct. And also because the appellant books the orders for the Singapore Company, we have to consider that the service is delivered only to the Singapore Company. The recipient of the service is a Singapore Company. When the recipient of the service is Singapore Company, it cannot be said that service is delivered in India and the benefit of the service is derived only by the recipient company. Because of the booking of the orders, the Singapore Company gets business. Therefore, the service is also utilized abroad. In terms of Rule 3(2) of the Export of Services Rules, 2005 the service rendered is indeed a service, which has been exported. In such circumstances, the appellant is not required to pay the service tax. There is absolutely no merit in the impugned order. Hence, we allow the appeal with consequential relief.22. In our opinion, therefore Vodafone Idea Limited has provided services to FTOs and not to the individual subscribers of FTOs. Therefore Section 13(3)(b) is not attracted. Section 13(3)(b) on which reliance has been placed by the Deputy Commissioner is not applicable.23. As per Section 13(2) of the IGST, the place of supply of services, except the services specified in sub-sections (3) to (13), shall be the location of the recipient of services. As discussed earlier, the recipients of the services is the FTO. We find that Vodafone Idea Limited has not supplied services specified in sub-sections (3) to (13) of Section 13. Therefore, the place of service or supply of service supplied by Vodafone Idea Limited is the location of recipient of the service, i.e., location of the FTO, which is outside India.In this regard, there is nothing to substantiate that the subscriber is acting on behalf of the FTO. The relationship between the FTO and the subscriber is on principal to principal basis and not on principal and agent basis. In this case, if the subscriber notices any deficiency in service he cannot talk directly to Vodafone Idea Ltd as representative of the FTO. The subscriber has to approach the FTO for the purpose of rectifying the deficiency. We find that this itself would substantiate that the subscriber is not representative or agent of the FTO. Further, we find no evidence to substantiate that the FTO has authorised its subscriber to be its representative.25. From the above, it is therefore evident that in the instant case, sub-section(2) of Section 13 is applicable and not sub-section (3)(b) of Section 13. Therefore, performance of services has no relevance in this case.
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Ceo, Krishna District Coop. Central Bank Ltd Vs. K Hanumantha Rao | An imprimatur to the aforesaid principle was accorded by this Court as well in Ranjit Thakur v. Union of India [(1987) 4 SCC 611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113]. Speaking for the Court, Venkatachaliah, J. (as he then was) emphasising that ?all powers have legal limits? invoked the aforesaid doctrine in the following words: (SCC p. 620, para 25)?25...The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review.?No such finding is arrived at by the High Court to the effect that the punishment awarded to respondent No.1 was shockingly disproportionate.Even otherwise, we do not find it to be so having regard to the fact that respondent No.1 did not perform his duties with due diligence and his negligence in performing the duties as a Supervisor has led to serious frauds in number of accounts by the subordinate staff. It was, therefore, for the disciplinary authority to consider as to whether respondent No.1 was fit to continue in the post of Supervisor.(iii) The impugned order is also faulted for the reason that it is not the function of the High Court to impose a particular punishment even in those cases where it was found that penalty awarded by the employer is shockingly disproportionate. In such a case, the matter could, at the best, be remanded to the disciplinary authority for imposition of lesser punishment leaving it to such authority to consider as to which lesser penalty needs to be inflicted upon the delinquent employee. No doubt, the administrative authority has to exercise its powers reasonably. However, the doctrine that powers must be exercised reasonably has to be reconciled with the doctrine that the Court must not usurp the discretion of the public authority. The Court must strive to apply an objective standard which leaves to the deciding authority the full range of choice. In Lucknow Kshetriya Gramin Bank & Anr. v. Rajendra Singh (2013) 12 SCC 372 ), this principle is formulated in the following manner:?13. Indubitably, the well-ingrained principle of law is that it is the disciplinary authority, or the appellate authority in appeal, which is to decide the nature of punishment to be given to a delinquent employee keeping in view the seriousness of the misconduct committed by such an employee. Courts cannot assume and usurp the function of the disciplinary authority. In Apparel Export Promotion Council v. A.K. Chopra [(1999) 1 SCC 759 : 1999 SCC (L&S) 405] this principle was explained in the following manner: (SCC p. 773, para 22)?22...The High Court in our opinion fell in error in interfering with the punishment, which could be lawfully imposed by the departmental authorities on the respondent for his proven misconduct. ? The High Court should not have substituted its own discretion for that of the authority. What punishment was required to be imposed, in the facts and circumstances of the case, was a matter which fell exclusively within the jurisdiction of the competent authority and did not warrant any interference by the High Court. The entire approach of the High Court has been faulty. The impugned order of the High Court cannot be sustained on this ground alone.?14. Yet again, in State of Meghalaya v. Mecken Singh N. Marak [(2008) 7 SCC 580 : (2008) 2 SCC (L&S) 431], this Court reiterated the law by stating: (SCC pp. 584-85, paras 14 and 17)?14. In the matter of imposition of sentence, the scope of interference is very limited and restricted to exceptional cases. The jurisdiction of the High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice.xx xx xx17. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The High Court in this case, has not only interfered with the punishment imposed by the disciplinary authority in a routine manner but overstepped its jurisdiction by directing the appellate authority to impose any other punishment short of removal. By fettering the discretion of the appellate authority to impose appropriate punishment for serious misconducts committed by the respondent, the High Court totally misdirected itself while exercising jurisdiction under Article 226. Judged in this background, the conclusion of the Division Bench of the High Court cannot be regarded as proper at all. The High Court has interfered with the punishment imposed by the competent authority in a casual manner and, therefore, the appeal will have to be accepted.? | 1[ds]8. After hearing the counsel for the parties, we are of the view that the impugned judgment of the Division Bench of the High Court is unsustainable. There are more than one reason for coming to this conclusion, which are stated hereunder:(i) The observation of the High Court that accusation of lack of proper supervision holds good against the top administration as well is without any basis. The High Court did not appreciate that respondent No.1 was the Supervisor and it was his specific duty, in that capacity, to check the accounts etc. and supervise the work of subordinates. Respondent No.1, in fact, admitted this fact. Also, there is an admission to the effect that his proper supervision would have prevented the persons named from defrauding the Bank. The High Court failed to appreciate that the duties of the Supervisor are not identical and similar to that of the top management of the Bank. No such duty by top management of the Bank is spelled out to show that it was similar to the duty of respondent No.1.(ii) Even otherwise, the aforesaid reason could not be a valid reason for interfering with the punishment imposed. It is trite that Courts, while exercising their power of judicial review over such matters, do not sit as the appellate authority. Decision qua the nature and quantum is the prerogative of the disciplinary authority. It is not the function of the High Court to decide the same. It is only in exceptional circumstances, where it is found that the punishment/penalty awarded by the disciplinary authority/employer is wholly disproportionate, that too to an extent that it shakes the conscience of the Court, that the Court steps in and interferes.No doubt, the award of punishment, which is grossly in excess to the allegations, cannot claim immunity and remains open for interference under limited scope for judicial review. This limited power of judicial review to interfere with the penalty is based on the doctrine of proportionality which is a well recognised concept of judicial review in our jurisprudence. The punishment should appear to be so disproportionate that it shocks the judicial conscience. (See State of JharkhandOrs. v. Kamal PrasadOrs. (2014) 7 SCC 223 )). | 1 | 2,931 | 418 | ### 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:
An imprimatur to the aforesaid principle was accorded by this Court as well in Ranjit Thakur v. Union of India [(1987) 4 SCC 611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113]. Speaking for the Court, Venkatachaliah, J. (as he then was) emphasising that ?all powers have legal limits? invoked the aforesaid doctrine in the following words: (SCC p. 620, para 25)?25...The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review.?No such finding is arrived at by the High Court to the effect that the punishment awarded to respondent No.1 was shockingly disproportionate.Even otherwise, we do not find it to be so having regard to the fact that respondent No.1 did not perform his duties with due diligence and his negligence in performing the duties as a Supervisor has led to serious frauds in number of accounts by the subordinate staff. It was, therefore, for the disciplinary authority to consider as to whether respondent No.1 was fit to continue in the post of Supervisor.(iii) The impugned order is also faulted for the reason that it is not the function of the High Court to impose a particular punishment even in those cases where it was found that penalty awarded by the employer is shockingly disproportionate. In such a case, the matter could, at the best, be remanded to the disciplinary authority for imposition of lesser punishment leaving it to such authority to consider as to which lesser penalty needs to be inflicted upon the delinquent employee. No doubt, the administrative authority has to exercise its powers reasonably. However, the doctrine that powers must be exercised reasonably has to be reconciled with the doctrine that the Court must not usurp the discretion of the public authority. The Court must strive to apply an objective standard which leaves to the deciding authority the full range of choice. In Lucknow Kshetriya Gramin Bank & Anr. v. Rajendra Singh (2013) 12 SCC 372 ), this principle is formulated in the following manner:?13. Indubitably, the well-ingrained principle of law is that it is the disciplinary authority, or the appellate authority in appeal, which is to decide the nature of punishment to be given to a delinquent employee keeping in view the seriousness of the misconduct committed by such an employee. Courts cannot assume and usurp the function of the disciplinary authority. In Apparel Export Promotion Council v. A.K. Chopra [(1999) 1 SCC 759 : 1999 SCC (L&S) 405] this principle was explained in the following manner: (SCC p. 773, para 22)?22...The High Court in our opinion fell in error in interfering with the punishment, which could be lawfully imposed by the departmental authorities on the respondent for his proven misconduct. ? The High Court should not have substituted its own discretion for that of the authority. What punishment was required to be imposed, in the facts and circumstances of the case, was a matter which fell exclusively within the jurisdiction of the competent authority and did not warrant any interference by the High Court. The entire approach of the High Court has been faulty. The impugned order of the High Court cannot be sustained on this ground alone.?14. Yet again, in State of Meghalaya v. Mecken Singh N. Marak [(2008) 7 SCC 580 : (2008) 2 SCC (L&S) 431], this Court reiterated the law by stating: (SCC pp. 584-85, paras 14 and 17)?14. In the matter of imposition of sentence, the scope of interference is very limited and restricted to exceptional cases. The jurisdiction of the High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice.xx xx xx17. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The High Court in this case, has not only interfered with the punishment imposed by the disciplinary authority in a routine manner but overstepped its jurisdiction by directing the appellate authority to impose any other punishment short of removal. By fettering the discretion of the appellate authority to impose appropriate punishment for serious misconducts committed by the respondent, the High Court totally misdirected itself while exercising jurisdiction under Article 226. Judged in this background, the conclusion of the Division Bench of the High Court cannot be regarded as proper at all. The High Court has interfered with the punishment imposed by the competent authority in a casual manner and, therefore, the appeal will have to be accepted.?
### Response:
1
### Explanation:
8. After hearing the counsel for the parties, we are of the view that the impugned judgment of the Division Bench of the High Court is unsustainable. There are more than one reason for coming to this conclusion, which are stated hereunder:(i) The observation of the High Court that accusation of lack of proper supervision holds good against the top administration as well is without any basis. The High Court did not appreciate that respondent No.1 was the Supervisor and it was his specific duty, in that capacity, to check the accounts etc. and supervise the work of subordinates. Respondent No.1, in fact, admitted this fact. Also, there is an admission to the effect that his proper supervision would have prevented the persons named from defrauding the Bank. The High Court failed to appreciate that the duties of the Supervisor are not identical and similar to that of the top management of the Bank. No such duty by top management of the Bank is spelled out to show that it was similar to the duty of respondent No.1.(ii) Even otherwise, the aforesaid reason could not be a valid reason for interfering with the punishment imposed. It is trite that Courts, while exercising their power of judicial review over such matters, do not sit as the appellate authority. Decision qua the nature and quantum is the prerogative of the disciplinary authority. It is not the function of the High Court to decide the same. It is only in exceptional circumstances, where it is found that the punishment/penalty awarded by the disciplinary authority/employer is wholly disproportionate, that too to an extent that it shakes the conscience of the Court, that the Court steps in and interferes.No doubt, the award of punishment, which is grossly in excess to the allegations, cannot claim immunity and remains open for interference under limited scope for judicial review. This limited power of judicial review to interfere with the penalty is based on the doctrine of proportionality which is a well recognised concept of judicial review in our jurisprudence. The punishment should appear to be so disproportionate that it shocks the judicial conscience. (See State of JharkhandOrs. v. Kamal PrasadOrs. (2014) 7 SCC 223 )).
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Baliya @ Bal Kishan Vs. State of M.P | would rarely be hatched in the open and, therefore, direct evidence to establish the same may not be always forthcoming. Proof or otherwise of such conspiracy is a matter of inference and the court in drawing such an inference must consider whether the basic facts i.e. circumstances from which the inference is to be drawn have been proved beyond all reasonable doubt, and thereafter, whether from such proved and established circumstances no other conclusion except that the accused had agreed to commit an offence can be drawn. Naturally in evaluating the proved circumstances for the purposes of drawing any inference adverse to the accused, the benefit of any doubt that may creep in must go to the accused. 15. Applying the above tests we find that in the present case the prosecution had proved, through the evidence of PWs 8 and 11, the conversation between Dr. Sandhya Swami and the accused Balia to the effect that the reputation of Dr. Sandhya Swami had suffered because of accused Balia and further that a pamphlet in this regard has been published. The prosecution has also succeeded in proving that the accused Balia had stated that he knew who was the author of the pamphlet and that Balia had told accused Manish and Gopal that the author of the pamphlet (deceased Pradeep) should not be spared. While this happened in the afternoon of the day of the occurrence, in the early part of the evening hours the deceased Pradeep was found lying injured on the road and on being brought to the hospital, was declared dead. Whether on this evidence the conclusion that the accused appellant had hatched a conspiracy to commit the murder of Pradeep can be drawn to the exclusion of all other possible conclusions is the question that requires our answer. 16. We have already held that in the present case, from the evidence of PWs 8 and 11, the prosecution has succeeded in establishing the conversation between the accused persons and Dr. Sandhya Swami details of which need not be repeated. In coming to the above conclusion, we had considered the arguments advanced on behalf of the accused that the said fact is inherently improbably as such a conversation is alleged to have occurred in a busy market place and the exchanges are reported to have been in a loud voice within the hearing of the people in the immediate vicinity, like PWs 8 and 11. Balancing the totality of the facts and keeping in mind the strata of society to which the accused persons belong/belonged it will be difficult to disbelieve what has been stated by the prosecution witnesses in a clear and cogent manner merely on the assertion that such an event is impossible. However, even accepting the prosecution version what reasonably follows therefrom is that Dr. Sandhya Swami had complained to accused Balia that her reputation has been smeared because of the pamphlet; that accused Balia had stated that he knew who was the author of the pamphlet and further that he had stated to accused Manish and Gopal that the author of the pamphlet (deceased Pradeep) should be killed. But what is conspicuous by its absence is the essential meeting of minds between accused Balia, Manish and Gopal to commit the murder of the deceased. No evidence is forthcoming as to what was the response of accused Manish and Gopal to the statement made by Balia to the effect that the author of the pamphlet must be done away with. In the absence of any material to establish the said fact the vital chain or link to enable us to satisfy ourselves with regard to an agreement or meeting of minds amongst the accused to commit the murder of deceased Pradeep is lacking. The alleged participation of the accused in the commission of the actual act of murder cannot be evidence of the conspiracy in as much as the commission of murder must be the result of the conspiracy already hatched. The alleged acts attributed to the accused insofar as the offence of murder is concerned, naturally, has to be considered separately in order to determine the liability of the accused for the said offence.17. The above would now require the Court to consider whether either of the appellants can be held to be liable for the offence under Section 302 IPC. We have already indicated that we do not find the evidence of PW 4 to be credible or reliable in so far as identification of accused Balia at the place of occurrence is concerned. If the evidence of the alleged eye witnesses (PW 4) is to be excluded, as it has to be, the accused Balia has not been implicated, in any manner whatsoever, by the circumstances that the prosecution has sought to establish by examining PWs 1 and 5. The aforesaid witnesses have nowhere mentioned that the accused Balia was present at any point of time or at the place when the occurrence took place. The said witnesses have, at best, implicated accused Gopal as being seen with the deceased Pradeep along with the accused Manish shortly before the incident. However, as already indicated, there is a serious discrepancy in the evidence of PWs 1 and 5 with regard to the presence of the accused Gopal in the company of the deceased immediately before the crime. The prosecution version of last seen together even if it is hypothetically accepted in its entirety, at the highest, would establish only a solitary incriminating circumstance against the accused, which in our considered view cannot give rise to the conclusion that the accused Gopal must be held liable for the murder of the deceased Pradeep. Recovery of the blood stained clothes of the accused Gopal at his instance, by itself, again will not be sufficient.18. In view of the foregoing discussions we are of the view that the conviction of the accused appellants under Section 120 B read with Section 302 IPC is not legally sustainable. | 1[ds]16. We have already held that in the present case, from the evidence of PWs 8 and 11, the prosecution has succeeded in establishing the conversation between the accused persons and Dr. Sandhya Swami details of which need not be repeated. In coming to the above conclusion, we had considered the arguments advanced on behalf of the accused that the said fact is inherently improbably as such a conversation is alleged to have occurred in a busy market place and the exchanges are reported to have been in a loud voice within the hearing of the people in the immediate vicinity, like PWs 8 and 11. Balancing the totality of the facts and keeping in mind the strata of society to which the accused persons belong/belonged it will be difficult to disbelieve what has been stated by the prosecution witnesses in a clear and cogent manner merely on the assertion that such an event is impossible. However, even accepting the prosecution version what reasonably follows therefrom is that Dr. Sandhya Swami had complained to accused Balia that her reputation has been smeared because of the pamphlet; that accused Balia had stated that he knew who was the author of the pamphlet and further that he had stated to accused Manish and Gopal that the author of the pamphlet (deceased Pradeep) should be killed. But what is conspicuous by its absence is the essential meeting of minds between accused Balia, Manish and Gopal to commit the murder of the deceased. No evidence is forthcoming as to what was the response of accused Manish and Gopal to the statement made by Balia to the effect that the author of the pamphlet must be done away with. In the absence of any material to establish the said fact the vital chain or link to enable us to satisfy ourselves with regard to an agreement or meeting of minds amongst the accused to commit the murder of deceased Pradeep is lacking. The alleged participation of the accused in the commission of the actual act of murder cannot be evidence of the conspiracy in as much as the commission of murder must be the result of the conspiracy already hatched. The alleged acts attributed to the accused insofar as the offence of murder is concerned, naturally, has to be considered separately in order to determine the liability of the accused for the said offence.17. The above would now require the Court to consider whether either of the appellants can be held to be liable for the offence under Section 302 IPC. We have already indicated that we do not find the evidence of PW 4 to be credible or reliable in so far as identification of accused Balia at the place of occurrence is concerned. If the evidence of the alleged eye witnesses (PW 4) is to be excluded, as it has to be, the accused Balia has not been implicated, in any manner whatsoever, by the circumstances that the prosecution has sought to establish by examining PWs 1 and 5. The aforesaid witnesses have nowhere mentioned that the accused Balia was present at any point of time or at the place when the occurrence took place. The said witnesses have, at best, implicated accused Gopal as being seen with the deceased Pradeep along with the accused Manish shortly before the incident. However, as already indicated, there is a serious discrepancy in the evidence of PWs 1 and 5 with regard to the presence of the accused Gopal in the company of the deceased immediately before the crime. The prosecution version of last seen together even if it is hypothetically accepted in its entirety, at the highest, would establish only a solitary incriminating circumstance against the accused, which in our considered view cannot give rise to the conclusion that the accused Gopal must be held liable for the murder of the deceased Pradeep. Recovery of the blood stained clothes of the accused Gopal at his instance, by itself, again will not be sufficient.18. In view of the foregoing discussions we are of the view that the conviction of the accused appellants under Section 120 B read with Section 302 IPC is not legally sustainable. | 1 | 3,506 | 750 | ### 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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would rarely be hatched in the open and, therefore, direct evidence to establish the same may not be always forthcoming. Proof or otherwise of such conspiracy is a matter of inference and the court in drawing such an inference must consider whether the basic facts i.e. circumstances from which the inference is to be drawn have been proved beyond all reasonable doubt, and thereafter, whether from such proved and established circumstances no other conclusion except that the accused had agreed to commit an offence can be drawn. Naturally in evaluating the proved circumstances for the purposes of drawing any inference adverse to the accused, the benefit of any doubt that may creep in must go to the accused. 15. Applying the above tests we find that in the present case the prosecution had proved, through the evidence of PWs 8 and 11, the conversation between Dr. Sandhya Swami and the accused Balia to the effect that the reputation of Dr. Sandhya Swami had suffered because of accused Balia and further that a pamphlet in this regard has been published. The prosecution has also succeeded in proving that the accused Balia had stated that he knew who was the author of the pamphlet and that Balia had told accused Manish and Gopal that the author of the pamphlet (deceased Pradeep) should not be spared. While this happened in the afternoon of the day of the occurrence, in the early part of the evening hours the deceased Pradeep was found lying injured on the road and on being brought to the hospital, was declared dead. Whether on this evidence the conclusion that the accused appellant had hatched a conspiracy to commit the murder of Pradeep can be drawn to the exclusion of all other possible conclusions is the question that requires our answer. 16. We have already held that in the present case, from the evidence of PWs 8 and 11, the prosecution has succeeded in establishing the conversation between the accused persons and Dr. Sandhya Swami details of which need not be repeated. In coming to the above conclusion, we had considered the arguments advanced on behalf of the accused that the said fact is inherently improbably as such a conversation is alleged to have occurred in a busy market place and the exchanges are reported to have been in a loud voice within the hearing of the people in the immediate vicinity, like PWs 8 and 11. Balancing the totality of the facts and keeping in mind the strata of society to which the accused persons belong/belonged it will be difficult to disbelieve what has been stated by the prosecution witnesses in a clear and cogent manner merely on the assertion that such an event is impossible. However, even accepting the prosecution version what reasonably follows therefrom is that Dr. Sandhya Swami had complained to accused Balia that her reputation has been smeared because of the pamphlet; that accused Balia had stated that he knew who was the author of the pamphlet and further that he had stated to accused Manish and Gopal that the author of the pamphlet (deceased Pradeep) should be killed. But what is conspicuous by its absence is the essential meeting of minds between accused Balia, Manish and Gopal to commit the murder of the deceased. No evidence is forthcoming as to what was the response of accused Manish and Gopal to the statement made by Balia to the effect that the author of the pamphlet must be done away with. In the absence of any material to establish the said fact the vital chain or link to enable us to satisfy ourselves with regard to an agreement or meeting of minds amongst the accused to commit the murder of deceased Pradeep is lacking. The alleged participation of the accused in the commission of the actual act of murder cannot be evidence of the conspiracy in as much as the commission of murder must be the result of the conspiracy already hatched. The alleged acts attributed to the accused insofar as the offence of murder is concerned, naturally, has to be considered separately in order to determine the liability of the accused for the said offence.17. The above would now require the Court to consider whether either of the appellants can be held to be liable for the offence under Section 302 IPC. We have already indicated that we do not find the evidence of PW 4 to be credible or reliable in so far as identification of accused Balia at the place of occurrence is concerned. If the evidence of the alleged eye witnesses (PW 4) is to be excluded, as it has to be, the accused Balia has not been implicated, in any manner whatsoever, by the circumstances that the prosecution has sought to establish by examining PWs 1 and 5. The aforesaid witnesses have nowhere mentioned that the accused Balia was present at any point of time or at the place when the occurrence took place. The said witnesses have, at best, implicated accused Gopal as being seen with the deceased Pradeep along with the accused Manish shortly before the incident. However, as already indicated, there is a serious discrepancy in the evidence of PWs 1 and 5 with regard to the presence of the accused Gopal in the company of the deceased immediately before the crime. The prosecution version of last seen together even if it is hypothetically accepted in its entirety, at the highest, would establish only a solitary incriminating circumstance against the accused, which in our considered view cannot give rise to the conclusion that the accused Gopal must be held liable for the murder of the deceased Pradeep. Recovery of the blood stained clothes of the accused Gopal at his instance, by itself, again will not be sufficient.18. In view of the foregoing discussions we are of the view that the conviction of the accused appellants under Section 120 B read with Section 302 IPC is not legally sustainable.
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16. We have already held that in the present case, from the evidence of PWs 8 and 11, the prosecution has succeeded in establishing the conversation between the accused persons and Dr. Sandhya Swami details of which need not be repeated. In coming to the above conclusion, we had considered the arguments advanced on behalf of the accused that the said fact is inherently improbably as such a conversation is alleged to have occurred in a busy market place and the exchanges are reported to have been in a loud voice within the hearing of the people in the immediate vicinity, like PWs 8 and 11. Balancing the totality of the facts and keeping in mind the strata of society to which the accused persons belong/belonged it will be difficult to disbelieve what has been stated by the prosecution witnesses in a clear and cogent manner merely on the assertion that such an event is impossible. However, even accepting the prosecution version what reasonably follows therefrom is that Dr. Sandhya Swami had complained to accused Balia that her reputation has been smeared because of the pamphlet; that accused Balia had stated that he knew who was the author of the pamphlet and further that he had stated to accused Manish and Gopal that the author of the pamphlet (deceased Pradeep) should be killed. But what is conspicuous by its absence is the essential meeting of minds between accused Balia, Manish and Gopal to commit the murder of the deceased. No evidence is forthcoming as to what was the response of accused Manish and Gopal to the statement made by Balia to the effect that the author of the pamphlet must be done away with. In the absence of any material to establish the said fact the vital chain or link to enable us to satisfy ourselves with regard to an agreement or meeting of minds amongst the accused to commit the murder of deceased Pradeep is lacking. The alleged participation of the accused in the commission of the actual act of murder cannot be evidence of the conspiracy in as much as the commission of murder must be the result of the conspiracy already hatched. The alleged acts attributed to the accused insofar as the offence of murder is concerned, naturally, has to be considered separately in order to determine the liability of the accused for the said offence.17. The above would now require the Court to consider whether either of the appellants can be held to be liable for the offence under Section 302 IPC. We have already indicated that we do not find the evidence of PW 4 to be credible or reliable in so far as identification of accused Balia at the place of occurrence is concerned. If the evidence of the alleged eye witnesses (PW 4) is to be excluded, as it has to be, the accused Balia has not been implicated, in any manner whatsoever, by the circumstances that the prosecution has sought to establish by examining PWs 1 and 5. The aforesaid witnesses have nowhere mentioned that the accused Balia was present at any point of time or at the place when the occurrence took place. The said witnesses have, at best, implicated accused Gopal as being seen with the deceased Pradeep along with the accused Manish shortly before the incident. However, as already indicated, there is a serious discrepancy in the evidence of PWs 1 and 5 with regard to the presence of the accused Gopal in the company of the deceased immediately before the crime. The prosecution version of last seen together even if it is hypothetically accepted in its entirety, at the highest, would establish only a solitary incriminating circumstance against the accused, which in our considered view cannot give rise to the conclusion that the accused Gopal must be held liable for the murder of the deceased Pradeep. Recovery of the blood stained clothes of the accused Gopal at his instance, by itself, again will not be sufficient.18. In view of the foregoing discussions we are of the view that the conviction of the accused appellants under Section 120 B read with Section 302 IPC is not legally sustainable.
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Commnr. Of Central Exice, New Delhi Vs. M/S. Modi Alkalies & Chem. Ltd. &Ors | respectively. Penalty of Rs. 1 lakh was imposed on each of the three companies and Rs. 50,000/- on each of the three employees and the Director of the Company.5. Eight appeals were filed before the CEGAT, which by the common judgment set aside the order of the Commissioner. It came to hold, inter alia, that (1) there was no manufacture involved in the process and, therefore, question of evasion of duty did not arise; (2) there was no inter-dependence as alleged by the Central Excise Authorities. Three companies had independent existence and the factual position did not indicate that they were front companies as alleged by the authorities. 6. In support of the appeals, learned counsel for the appellant submitted that the CEGAT has fallen into grave error both while analyzing factual position and the applicable principles of law. Telltale features which clearly prove that the three companies were front companies have been lightly brushed aside by the CEGAT. It even failed to notice that transactions were done by companies with share capital of Rs. 200 each. The CEGAT has also recorded wrong findings as regards the management and marketing. Though the issue as to whether there was manufacture was never agitated before the Commissioner, the CEGAT on its own came to hold that there was no manufacturing. The conclusion is not supportable on facts and in law. 7. In response, learned counsel for the respondents submitted that the CEGAT has rightly analysed the factual background and came to the right conclusions. It was submitted that the three companies have separate corporate existence, are assessed separately to sales tax and income tax and have central excise registration. They submitted records to the Central Excise Authorities which were being verified by them. In any event, the question of any clubbing was not permissible in view of circular no. 6/92 dated 25.5.1992 issued by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise and Customs, New Delhi. The same was, in fact, continuation of the notification No. CER 8(5) Central Excise continuation of the notification No. CER 8(5) Central Excise dated 1.3.1956. It was pointed out that there was no suppression or evasion for applying extended period of limitation. The show-cause notice was issued on 26.6.1997 and the order was passed on 23.10.1998 relating to the period from 9.5.1992 to 27.9.1996. The whole proceedings were, therefore, beyond the prescribed period of of limitation. 8. Whether there is inter-dependence and whether another unit is, in fact, a dummy has to be adjudicated on the facts of each case. There cannot be any generalization or rule or universal application. Two basic features which prima facie show inter-dependence are pervasive financial control and management control. In the present case facts clearly show financial control. Undisputedly, the share capital of each of the three companies was Rs. 200/-. Though it was claimed that financial assistance was availed from the financial companies, it is on record that the unsecured loans advanced by MACL to the three companies were substantially heavy amounts as on 1.4.1998. NGCPL received an amount of Rs.1.55 crores. About 14 lakhs appeared to have been paid after the issue of show cause notice. Loans advanced to NGCPL was about Rs.52 lakhs while to SCGCPL it was about Rs. 65 lakhs. The finding of the Commissioner that the financial assistance from the financial institutions were availed with the aid and assistance of MACL has not been seriously disputed. Apart from that, the cylinders were brought on lease by MACL from another concern and were sub-leased to the three companies. The cylinders bore the name of MACL. If the three companies had separate standing as contended it could not be explained why they could not get the cylinders directly from the lessors on lease basis and the need for introducing MACL as the lessee and then the three companies becoming sub-lessees. As noted by the Commissioner, entire receipts were paid as lease amount to MACL. Here again, the under-valuation aspect assumes importance. While the supply by MACL to three companies was Rs. 0.50 per unit, the sale price by the three companies was Rs. 5 per unit. It is on record that accounts were kept by common staff and marketing was done under the supervision of a person who belongs to the same group of concerns. The amounts have been collected by an employee of MACL. The so-called Directors of the companies were undisputedly employees of MACL. Almost the entire financial resources were made by MACL. The financial position clearly shows that MACL had more than ordinary interest in the financial arrangements for companies. The statements of the employees/Directors show that the whole show was controlled, both on financial and management aspects by MACL. If these are not sufficient to show inter-dependence probably nothing better would show the same. The factors which have weighed with CEGAT like registration of three companies under the sales tax and income tax authorities have to be considered in the background of factual position noted above. When the corporate veil is lifted what comes into focus is only the shadow and not any substance about the existence of the three companies independently. The circular no. 6/92 dated 29.5.1992 has no relevance because it related to notification no. 175/86-CE dated 1.3.1986 and did not relate to notification no. 1/93. The extended period of limitation was clearly applicable on the facts of the case, as suppression of material features and factors has been clearly established. If in reality the three companies are front companies then the price per unit to be assessed in the hands of MACL is Rs. 5 and not Rs. 0.50 as disclosed. The question whether there was manufacture or not was not in issue before the Commissioner. The plea that there was no manufacture has also to be rejected in view of the fact that exemption was claimed by the three companies as manufacturers to avail the benefit of Central Excise Notification No. 1/93. | 1[ds]8. Whether there is inter-dependence and whether another unit is, in fact, a dummy has to be adjudicated on the facts of each case. There cannot be any generalization or rule or universal application. Two basic features which prima facie show inter-dependence are pervasive financial control and management control. In the present case facts clearly show financial control. Undisputedly, the share capital of each of the three companies was Rs. 200/-. Though it was claimed that financial assistance was availed from the financial companies, it is on record that the unsecured loans advanced by MACL to the three companies were substantially heavy amounts as on 1.4.1998. NGCPL received an amount of Rs.1.55 crores. About 14 lakhs appeared to have been paid after the issue of show cause notice. Loans advanced to NGCPL was about Rs.52 lakhs while to SCGCPL it was about Rs. 65 lakhs. The finding of the Commissioner that the financial assistance from the financial institutions were availed with the aid and assistance of MACL has not been seriously disputed. Apart from that, the cylinders were brought on lease by MACL from another concern and were sub-leased to the three companies. The cylinders bore the name of MACL. If the three companies had separate standing as contended it could not be explained why they could not get the cylinders directly from the lessors on lease basis and the need for introducing MACL as the lessee and then the three companies becoming sub-lessees. As noted by the Commissioner, entire receipts were paid as lease amount to MACL. Here again, the under-valuation aspect assumes importance. While the supply by MACL to three companies was Rs. 0.50 per unit, the sale price by the three companies was Rs. 5 per unit. It is on record that accounts were kept by common staff and marketing was done under the supervision of a person who belongs to the same group of concerns. The amounts have been collected by an employee of MACL. The so-called Directors of the companies were undisputedly employees of MACL. Almost the entire financial resources were made by MACL. The financial position clearly shows that MACL had more than ordinary interest in the financial arrangements for companies. The statements of the employees/Directors show that the whole show was controlled, both on financial and management aspects by MACL. If these are not sufficient to show inter-dependence probably nothing better would show the same. The factors which have weighed with CEGAT like registration of three companies under the sales tax and income tax authorities have to be considered in the background of factual position noted above. When the corporate veil is lifted what comes into focus is only the shadow and not any substance about the existence of the three companies independently. The circular no. 6/92 dated 29.5.1992 has no relevance because it related to notification no. 175/86-CE dated 1.3.1986 and did not relate to notification no. 1/93. The extended period of limitation was clearly applicable on the facts of the case, as suppression of material features and factors has been clearly established. If in reality the three companies are front companies then the price per unit to be assessed in the hands of MACL is Rs. 5 and not Rs. 0.50 as disclosed. The question whether there was manufacture or not was not in issue before the Commissioner. The plea that there was no manufacture has also to be rejected in view of the fact that exemption was claimed by the three companies as manufacturers to avail the benefit of Central Excise Notification No. 1/93. | 1 | 2,239 | 650 | ### 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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respectively. Penalty of Rs. 1 lakh was imposed on each of the three companies and Rs. 50,000/- on each of the three employees and the Director of the Company.5. Eight appeals were filed before the CEGAT, which by the common judgment set aside the order of the Commissioner. It came to hold, inter alia, that (1) there was no manufacture involved in the process and, therefore, question of evasion of duty did not arise; (2) there was no inter-dependence as alleged by the Central Excise Authorities. Three companies had independent existence and the factual position did not indicate that they were front companies as alleged by the authorities. 6. In support of the appeals, learned counsel for the appellant submitted that the CEGAT has fallen into grave error both while analyzing factual position and the applicable principles of law. Telltale features which clearly prove that the three companies were front companies have been lightly brushed aside by the CEGAT. It even failed to notice that transactions were done by companies with share capital of Rs. 200 each. The CEGAT has also recorded wrong findings as regards the management and marketing. Though the issue as to whether there was manufacture was never agitated before the Commissioner, the CEGAT on its own came to hold that there was no manufacturing. The conclusion is not supportable on facts and in law. 7. In response, learned counsel for the respondents submitted that the CEGAT has rightly analysed the factual background and came to the right conclusions. It was submitted that the three companies have separate corporate existence, are assessed separately to sales tax and income tax and have central excise registration. They submitted records to the Central Excise Authorities which were being verified by them. In any event, the question of any clubbing was not permissible in view of circular no. 6/92 dated 25.5.1992 issued by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise and Customs, New Delhi. The same was, in fact, continuation of the notification No. CER 8(5) Central Excise continuation of the notification No. CER 8(5) Central Excise dated 1.3.1956. It was pointed out that there was no suppression or evasion for applying extended period of limitation. The show-cause notice was issued on 26.6.1997 and the order was passed on 23.10.1998 relating to the period from 9.5.1992 to 27.9.1996. The whole proceedings were, therefore, beyond the prescribed period of of limitation. 8. Whether there is inter-dependence and whether another unit is, in fact, a dummy has to be adjudicated on the facts of each case. There cannot be any generalization or rule or universal application. Two basic features which prima facie show inter-dependence are pervasive financial control and management control. In the present case facts clearly show financial control. Undisputedly, the share capital of each of the three companies was Rs. 200/-. Though it was claimed that financial assistance was availed from the financial companies, it is on record that the unsecured loans advanced by MACL to the three companies were substantially heavy amounts as on 1.4.1998. NGCPL received an amount of Rs.1.55 crores. About 14 lakhs appeared to have been paid after the issue of show cause notice. Loans advanced to NGCPL was about Rs.52 lakhs while to SCGCPL it was about Rs. 65 lakhs. The finding of the Commissioner that the financial assistance from the financial institutions were availed with the aid and assistance of MACL has not been seriously disputed. Apart from that, the cylinders were brought on lease by MACL from another concern and were sub-leased to the three companies. The cylinders bore the name of MACL. If the three companies had separate standing as contended it could not be explained why they could not get the cylinders directly from the lessors on lease basis and the need for introducing MACL as the lessee and then the three companies becoming sub-lessees. As noted by the Commissioner, entire receipts were paid as lease amount to MACL. Here again, the under-valuation aspect assumes importance. While the supply by MACL to three companies was Rs. 0.50 per unit, the sale price by the three companies was Rs. 5 per unit. It is on record that accounts were kept by common staff and marketing was done under the supervision of a person who belongs to the same group of concerns. The amounts have been collected by an employee of MACL. The so-called Directors of the companies were undisputedly employees of MACL. Almost the entire financial resources were made by MACL. The financial position clearly shows that MACL had more than ordinary interest in the financial arrangements for companies. The statements of the employees/Directors show that the whole show was controlled, both on financial and management aspects by MACL. If these are not sufficient to show inter-dependence probably nothing better would show the same. The factors which have weighed with CEGAT like registration of three companies under the sales tax and income tax authorities have to be considered in the background of factual position noted above. When the corporate veil is lifted what comes into focus is only the shadow and not any substance about the existence of the three companies independently. The circular no. 6/92 dated 29.5.1992 has no relevance because it related to notification no. 175/86-CE dated 1.3.1986 and did not relate to notification no. 1/93. The extended period of limitation was clearly applicable on the facts of the case, as suppression of material features and factors has been clearly established. If in reality the three companies are front companies then the price per unit to be assessed in the hands of MACL is Rs. 5 and not Rs. 0.50 as disclosed. The question whether there was manufacture or not was not in issue before the Commissioner. The plea that there was no manufacture has also to be rejected in view of the fact that exemption was claimed by the three companies as manufacturers to avail the benefit of Central Excise Notification No. 1/93.
### Response:
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### Explanation:
8. Whether there is inter-dependence and whether another unit is, in fact, a dummy has to be adjudicated on the facts of each case. There cannot be any generalization or rule or universal application. Two basic features which prima facie show inter-dependence are pervasive financial control and management control. In the present case facts clearly show financial control. Undisputedly, the share capital of each of the three companies was Rs. 200/-. Though it was claimed that financial assistance was availed from the financial companies, it is on record that the unsecured loans advanced by MACL to the three companies were substantially heavy amounts as on 1.4.1998. NGCPL received an amount of Rs.1.55 crores. About 14 lakhs appeared to have been paid after the issue of show cause notice. Loans advanced to NGCPL was about Rs.52 lakhs while to SCGCPL it was about Rs. 65 lakhs. The finding of the Commissioner that the financial assistance from the financial institutions were availed with the aid and assistance of MACL has not been seriously disputed. Apart from that, the cylinders were brought on lease by MACL from another concern and were sub-leased to the three companies. The cylinders bore the name of MACL. If the three companies had separate standing as contended it could not be explained why they could not get the cylinders directly from the lessors on lease basis and the need for introducing MACL as the lessee and then the three companies becoming sub-lessees. As noted by the Commissioner, entire receipts were paid as lease amount to MACL. Here again, the under-valuation aspect assumes importance. While the supply by MACL to three companies was Rs. 0.50 per unit, the sale price by the three companies was Rs. 5 per unit. It is on record that accounts were kept by common staff and marketing was done under the supervision of a person who belongs to the same group of concerns. The amounts have been collected by an employee of MACL. The so-called Directors of the companies were undisputedly employees of MACL. Almost the entire financial resources were made by MACL. The financial position clearly shows that MACL had more than ordinary interest in the financial arrangements for companies. The statements of the employees/Directors show that the whole show was controlled, both on financial and management aspects by MACL. If these are not sufficient to show inter-dependence probably nothing better would show the same. The factors which have weighed with CEGAT like registration of three companies under the sales tax and income tax authorities have to be considered in the background of factual position noted above. When the corporate veil is lifted what comes into focus is only the shadow and not any substance about the existence of the three companies independently. The circular no. 6/92 dated 29.5.1992 has no relevance because it related to notification no. 175/86-CE dated 1.3.1986 and did not relate to notification no. 1/93. The extended period of limitation was clearly applicable on the facts of the case, as suppression of material features and factors has been clearly established. If in reality the three companies are front companies then the price per unit to be assessed in the hands of MACL is Rs. 5 and not Rs. 0.50 as disclosed. The question whether there was manufacture or not was not in issue before the Commissioner. The plea that there was no manufacture has also to be rejected in view of the fact that exemption was claimed by the three companies as manufacturers to avail the benefit of Central Excise Notification No. 1/93.
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Mohan Raj Vs. Surendra Kumar Taparia & Ors | and in Part VII unless the context otherwise requires.(a) * * * *(b) candidate means a person who has been or claims to have been duly nominated as a candidate at any election and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect he began to hold himself out as a prospective candidate;"Since Periwal was a candidate who was duly nominated at an election he would be a candidate within the meaning assigned to that word by this definition. The question raised is that Periwal was not a candidate at the election since he had withdrawn and, in any case this definition need not be read in Section 82 (b) which should be limited to contesting candidates. Under Section 87 a candidate may withdraw and once the notice of withdrawal is given it is final. After the date of withdrawal passes a list of contesting candidates is drawn of under Section 38. It is submitted that S. 82 (b) should be limited to the contesting candidates. It is also submitted that when Ss. 100 and 123 speak of a candidate they refer to a candidate whose candidature subsists to the time of the election, that is to say, after the time for withdrawal passes. The petition under Section 83 (1) (b), it is said, can set out particulars of corrupt practices "against parties" and that would include contesting candidates, their election and other agents and persons other than candidates and their agents. It is submitted that a candidate who has withdrawn is no longer a candidate and hence cannot be a party.9. The argument cannot be entertained. These questions have already been considered by this Court on more than one occasion. They were first considered in K. Kamaraj Nadar v. Kunju Thevar, 1959 SCR 583 =(AIR 1958 SC 687 ) but that ruling may not strictly be appropriate since it was based on Section 55A (2) which is now repealed. However, other cases (Amin Lal v. Hunna Mal, 1965-1 SCR 393 = (AIR 1965 SC 1243 ) and Har Swarup v. Brij Bhushan Saran, 1967-1 SCR 342 = (AIR 1967 SC 836 ) ) consider this point.It is there laid down that a candidate who is duly nominated continues to be a candidate for purpose of Section 82 (b) in spite of withdrawal. This really decides the question which has been mooted before us. A very detailed examination of the same question is to be found in Chaturbhuj v. Election Tribunal, Kanpur, 1958-15 ELR 301 at p. 308 = (AIR 1958 All 809 at p. 812).In that case our brother Bhargava (N. L.Chaturvedi J. concurring) has examined in the Allahabad High Court these provisions from every angle which are presented to us and has adequately answered all the arguments.10. It is argued that the Civil Procedure Code applies and O. 6 R. 17 and O. 1 R. 10 enable the High Court respectively to order amendment of a petition an to strike out parties. It is submitted, therefore, that both these powers could be exercised in this case by ordering deletion of references to Periwal. This argument cannot be accepted.No doubt the power of amendment is preserved to the Court and O. 1 R. 10 enables the Court to strike out parties but the Court cannot use O. 6 R. 17 or O. l R. 10 to avoid the consequences of non-joinder for which a special provision is to be found in the Act. The Court can order an amendment and even strike out a party who is not necessary. But when the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all. The Civil Procedure Code applies subject to the provisions of the Representation of the People Act and any rules made thereunder (see S. 87). When the Act enjoins the penalty of dismissal of the petition for non-joinder of a party the provisions of the Civil Procedure Code cannot be used as curative means to save the petition.11. An attempt is made to distinguish the cases cited by us on the ground that now the provisions of Ss. 4 to 25 of the Indian Limitation Act are applicable to election petitions and the amendment of the petition and joining of parties can take place at any time. It is submitted that now the cases must be decided under the amended law.We need not go into this matter. It is doubtful whether these provisions of the Limitation Act apply at all. The petitioner has not asked to join Periwal. He only wants an amendment to delete allegations of corrupt practice against him. This cannot be permitted since it will defeat the provisions of S. 86 (1). Every election petition can be saved by amendment in this way but that is not the policy of the law.The dismissal is peremptory and the law does not admit of any other approach. It is significant that in l965-1 SCR 393 =(AIR 1965 SC 1243 ) although the matter was not gone into from this angle it was said that the amendment for better particulars was not intended to enable the election petitioner to remove the defect in presentation or in the joinder of parties. Sheopat Singh v. Ram Pratap, 1965 SCR 175 = (AIR 1965 SC 677 ) since the facts were assumed, cannot be said to record any decision.12. Lastly, it is submitted that Periwal was being charged in his character as an election agent and not as a candidate.This submission runs counter to the amendment petition which says that he was not an election agent and therefore he was really charged in his capacity as an individual and as he was a duly nominated candidate he had to be joined. The argument really contradicts the last amendment petition and cannot be entertained. | 1[ds]Since Periwal was a candidate who was duly nominated at an election he would be a candidate within the meaning assigned to that word by this definition. The question raised is that Periwal was not a candidate at the election since he had withdrawn and, in any case this definition need not be read in Section 82 (b) which should be limited to contesting candidates. Under Section 87 a candidate may withdraw and once the notice of withdrawal is given it is final. After the date of withdrawal passes a list of contesting candidates is drawn of under Section 38. It is submitted that S. 82 (b) should be limited to the contesting candidates. It is also submitted that when Ss. 100 and 123 speak of a candidate they refer to a candidate whose candidature subsists to the time of the election, that is to say, after the time for withdrawal passes. The petition under Section 83 (1) (b), it is said, can set out particulars of corrupt practices "against parties" and that would include contesting candidates, their election and other agents and persons other than candidates and their agents. It is submitted that a candidate who has withdrawn is no longer a candidate and hence cannot be a party.It is argued that the Civil Procedure Code applies and O. 6 R. 17 and O. 1 R. 10 enable the High Court respectively to order amendment of a petition an to strike out parties. It is submitted, therefore, that both these powers could be exercised in this case by ordering deletion of references to Periwal. This argument cannot be accepted.No doubt the power of amendment is preserved to the Court and O. 1 R. 10 enables the Court to strike out parties but the Court cannot use O. 6 R. 17 or O. l R. 10 to avoid the consequences of non-joinder for which a special provision is to be found in the Act. The Court can order an amendment and even strike out a party who is not necessary. But when the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all. The Civil Procedure Code applies subject to the provisions of the Representation of the People Act and any rules made thereunder (see S. 87). When the Act enjoins the penalty of dismissal of the petition for non-joinder of a party the provisions of the Civil Procedure Code cannot be used as curative means to save the petition.11. An attempt is made to distinguish the cases cited by us on the ground that now the provisions of Ss. 4 to 25 of the Indian Limitation Act are applicable to election petitions and the amendment of the petition and joining of parties can take place at any time. It is submitted that now the cases must be decided under the amended law.We need not go into this matter. It is doubtful whether these provisions of the Limitation Act apply at all. The petitioner has not asked to join Periwal. He only wants an amendment to delete allegations of corrupt practice against him. This cannot be permitted since it will defeat the provisions of S. 86 (1). Every election petition can be saved by amendment in this way but that is not the policy of the law.The dismissal is peremptory and the law does not admit of any other approach. It is significant that in l965-1 SCR 393 =(AIR 1965 SC 1243 ) although the matter was not gone into from this angle it was said that the amendment for better particulars was not intended to enable the election petitioner to remove the defect in presentation or in the joinder of parties.Lastly, it is submitted that Periwal was being charged in his character as an election agent and not as a candidate.This submission runs counter to the amendment petition which says that he was not an election agent and therefore he was really charged in his capacity as an individual and as he was a duly nominated candidate he had to be joined. The argument really contradicts the last amendment petition and cannot be entertained. | 1 | 2,736 | 777 | ### 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:
and in Part VII unless the context otherwise requires.(a) * * * *(b) candidate means a person who has been or claims to have been duly nominated as a candidate at any election and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect he began to hold himself out as a prospective candidate;"Since Periwal was a candidate who was duly nominated at an election he would be a candidate within the meaning assigned to that word by this definition. The question raised is that Periwal was not a candidate at the election since he had withdrawn and, in any case this definition need not be read in Section 82 (b) which should be limited to contesting candidates. Under Section 87 a candidate may withdraw and once the notice of withdrawal is given it is final. After the date of withdrawal passes a list of contesting candidates is drawn of under Section 38. It is submitted that S. 82 (b) should be limited to the contesting candidates. It is also submitted that when Ss. 100 and 123 speak of a candidate they refer to a candidate whose candidature subsists to the time of the election, that is to say, after the time for withdrawal passes. The petition under Section 83 (1) (b), it is said, can set out particulars of corrupt practices "against parties" and that would include contesting candidates, their election and other agents and persons other than candidates and their agents. It is submitted that a candidate who has withdrawn is no longer a candidate and hence cannot be a party.9. The argument cannot be entertained. These questions have already been considered by this Court on more than one occasion. They were first considered in K. Kamaraj Nadar v. Kunju Thevar, 1959 SCR 583 =(AIR 1958 SC 687 ) but that ruling may not strictly be appropriate since it was based on Section 55A (2) which is now repealed. However, other cases (Amin Lal v. Hunna Mal, 1965-1 SCR 393 = (AIR 1965 SC 1243 ) and Har Swarup v. Brij Bhushan Saran, 1967-1 SCR 342 = (AIR 1967 SC 836 ) ) consider this point.It is there laid down that a candidate who is duly nominated continues to be a candidate for purpose of Section 82 (b) in spite of withdrawal. This really decides the question which has been mooted before us. A very detailed examination of the same question is to be found in Chaturbhuj v. Election Tribunal, Kanpur, 1958-15 ELR 301 at p. 308 = (AIR 1958 All 809 at p. 812).In that case our brother Bhargava (N. L.Chaturvedi J. concurring) has examined in the Allahabad High Court these provisions from every angle which are presented to us and has adequately answered all the arguments.10. It is argued that the Civil Procedure Code applies and O. 6 R. 17 and O. 1 R. 10 enable the High Court respectively to order amendment of a petition an to strike out parties. It is submitted, therefore, that both these powers could be exercised in this case by ordering deletion of references to Periwal. This argument cannot be accepted.No doubt the power of amendment is preserved to the Court and O. 1 R. 10 enables the Court to strike out parties but the Court cannot use O. 6 R. 17 or O. l R. 10 to avoid the consequences of non-joinder for which a special provision is to be found in the Act. The Court can order an amendment and even strike out a party who is not necessary. But when the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all. The Civil Procedure Code applies subject to the provisions of the Representation of the People Act and any rules made thereunder (see S. 87). When the Act enjoins the penalty of dismissal of the petition for non-joinder of a party the provisions of the Civil Procedure Code cannot be used as curative means to save the petition.11. An attempt is made to distinguish the cases cited by us on the ground that now the provisions of Ss. 4 to 25 of the Indian Limitation Act are applicable to election petitions and the amendment of the petition and joining of parties can take place at any time. It is submitted that now the cases must be decided under the amended law.We need not go into this matter. It is doubtful whether these provisions of the Limitation Act apply at all. The petitioner has not asked to join Periwal. He only wants an amendment to delete allegations of corrupt practice against him. This cannot be permitted since it will defeat the provisions of S. 86 (1). Every election petition can be saved by amendment in this way but that is not the policy of the law.The dismissal is peremptory and the law does not admit of any other approach. It is significant that in l965-1 SCR 393 =(AIR 1965 SC 1243 ) although the matter was not gone into from this angle it was said that the amendment for better particulars was not intended to enable the election petitioner to remove the defect in presentation or in the joinder of parties. Sheopat Singh v. Ram Pratap, 1965 SCR 175 = (AIR 1965 SC 677 ) since the facts were assumed, cannot be said to record any decision.12. Lastly, it is submitted that Periwal was being charged in his character as an election agent and not as a candidate.This submission runs counter to the amendment petition which says that he was not an election agent and therefore he was really charged in his capacity as an individual and as he was a duly nominated candidate he had to be joined. The argument really contradicts the last amendment petition and cannot be entertained.
### Response:
1
### Explanation:
Since Periwal was a candidate who was duly nominated at an election he would be a candidate within the meaning assigned to that word by this definition. The question raised is that Periwal was not a candidate at the election since he had withdrawn and, in any case this definition need not be read in Section 82 (b) which should be limited to contesting candidates. Under Section 87 a candidate may withdraw and once the notice of withdrawal is given it is final. After the date of withdrawal passes a list of contesting candidates is drawn of under Section 38. It is submitted that S. 82 (b) should be limited to the contesting candidates. It is also submitted that when Ss. 100 and 123 speak of a candidate they refer to a candidate whose candidature subsists to the time of the election, that is to say, after the time for withdrawal passes. The petition under Section 83 (1) (b), it is said, can set out particulars of corrupt practices "against parties" and that would include contesting candidates, their election and other agents and persons other than candidates and their agents. It is submitted that a candidate who has withdrawn is no longer a candidate and hence cannot be a party.It is argued that the Civil Procedure Code applies and O. 6 R. 17 and O. 1 R. 10 enable the High Court respectively to order amendment of a petition an to strike out parties. It is submitted, therefore, that both these powers could be exercised in this case by ordering deletion of references to Periwal. This argument cannot be accepted.No doubt the power of amendment is preserved to the Court and O. 1 R. 10 enables the Court to strike out parties but the Court cannot use O. 6 R. 17 or O. l R. 10 to avoid the consequences of non-joinder for which a special provision is to be found in the Act. The Court can order an amendment and even strike out a party who is not necessary. But when the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all. The Civil Procedure Code applies subject to the provisions of the Representation of the People Act and any rules made thereunder (see S. 87). When the Act enjoins the penalty of dismissal of the petition for non-joinder of a party the provisions of the Civil Procedure Code cannot be used as curative means to save the petition.11. An attempt is made to distinguish the cases cited by us on the ground that now the provisions of Ss. 4 to 25 of the Indian Limitation Act are applicable to election petitions and the amendment of the petition and joining of parties can take place at any time. It is submitted that now the cases must be decided under the amended law.We need not go into this matter. It is doubtful whether these provisions of the Limitation Act apply at all. The petitioner has not asked to join Periwal. He only wants an amendment to delete allegations of corrupt practice against him. This cannot be permitted since it will defeat the provisions of S. 86 (1). Every election petition can be saved by amendment in this way but that is not the policy of the law.The dismissal is peremptory and the law does not admit of any other approach. It is significant that in l965-1 SCR 393 =(AIR 1965 SC 1243 ) although the matter was not gone into from this angle it was said that the amendment for better particulars was not intended to enable the election petitioner to remove the defect in presentation or in the joinder of parties.Lastly, it is submitted that Periwal was being charged in his character as an election agent and not as a candidate.This submission runs counter to the amendment petition which says that he was not an election agent and therefore he was really charged in his capacity as an individual and as he was a duly nominated candidate he had to be joined. The argument really contradicts the last amendment petition and cannot be entertained.
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R. Kempraj Vs. M/S. Barton Son & Co | or of money, a share of crops, service or any other thing of value. A lease is not a mere contract but it is a transfer of an interest in land and creates an right in rem. Owing to the provisions of section 105 a lease in perpetuity can be created but even then an interest still remains the lessor which is called a reversion.5. It is not disputed on behalf of the appellant that a lease in perpetuity could have been created but the lease in the present case was not of that kind and was for a period of ten years only in the first instance. It is said that the mischief is created by the clauses relating to renewal which are covenants that run with the land. It is pointed out that on a correct construction of the renewal clauses the rule of perpetuity contained in section 14 would be immediately attracted.We are unable to agree. Section 14 is applicable only where there is transfer of property. Even if creation of a leasehold interest is a transfer of a right in property and would fall within the expression "transfer of property" the transfer was for a period of ten years only by means of the indenture Exh. P-1.The stipulation relating to renewal could not be regarded as transferring property or any rights therein.6. In Ganesh Sonar v. Purnendu Narayan Singha, AIR 1962 Pat 201 in the case of lease of land an option had been given to the lessor determine the lease and take possession of the leasehold land under specified conditions. The question was whether such a covenant would fall within the rule laid down in the English case Woodall v. Clifton, 1905-2 Ch 257 in which it was held that a proviso in a lease giving an option to the lessor to purchase the fee simple of the land at a certain rate was invalid as infringing the rule against perpetuity. The Patna High Court distinguished the English decision quite rightly on the ground that after the coming into force of the Act a contract for the sale of immovable property did not itself create an interest in such property as was the case under the English law. According to the Patna decision the option given by the lessee to the lessor to resume the leasehold land was merely a personal covenant and was not a covenant which created an interest in land and so the rule against perpetuity contained in section 14 of the Act was not applicable. The same principle would govern the present case.The clauses containing the option to get the lease renewed on the expiry of each term of ten years can by no means be regarded as creating an interest in property of the nature that would fall within the ambit of section 14.7. Even under the English law the court would give effect to a covenant for perpetual renewal so long as the intention is clear and it will not be open to objection on the ground of perpetuity; See Halsburys Laws of England, 3rd Edn. Vol. 23 p. 627. In Muller v. Trafford,(1901) 1 Ch 54 it was held that the covenant in a lease for renewal was not strictly a covenant for renewal. But Farwell J., proceeded to observe that a covenant to renew had been held for at least two centuries to be a covenant running with the land. If so, then no question of perpetuity would arise. It appears that in England whatever might have been the reason, the objection of perpetuity had never been taken to cases of covenants for renewal. The following observations of Farwell J., which were quoted with approval by Lord Evershed M. R. in Weg Motors Ltd. v. Hales, 1961-3 All ER 181 at p. 188 are noteworthy;"But now I will assume that this is a covenant for renewal running with the land; it is then in my opinion free from any taint of perpetuity because it is annexed to the land. See Rogers v. Hosegood, (1900) 2 Ch. 388."The equitable rule that the burden of a covenant runs with the land is to be found in section 40 of the Act. This section reads:40. "Where for the more beneficial enjoyment of his own immoveable property, a third person, has, independently of any interest in the immoveable property of another or of any easement thereon, a right to restrain the enjoyment in a particular manner of the latter property, orwhere a third person is entitled to the benefit of an obligation arising out of contract, and annexed to the ownership of immovable property, but not amounting to an interest therein or easement thereon.such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation nor against such property in his hands."8. As pointed out in Mullas Transfer of Property Act, 5th Edn., at p. 194, section 40 expressly says that the right of the covenantee is not an interest in the land bound by the covenant nor an easement. It is not an interest because the Act does not recognise equitable estates and it cannot be said as Sir George Jessel said in London and South Western Rly. v. Gomm, (1882) 20 Ch D 562 at p. 580 thatif a covenant "binds the land it creates an equitable interest in the land." The expression "covenant runs with the land" has been taken from the English law of real property. It is an exception to the general rule that all covenants are personal. Even on the footing that the clauses relating to renewal in the lease, in the present case, contain covenants running with the land the rule against perpetuity contained in section 14 of the Act would not be applicable as no interest in property has been created of the nature contemplated by that provision. | 0[ds]4. The rule against perpetuity is embodied in S. 14 of the Transfer of Property Act, hereinafter called the Act. According to it no transfer of property can operate to create an interest which is to take effect after the lifetime of one or more persons living at the date of such transfer and the minority of some persons who shall be in existence at the expiration of that period and to whom, if he attains full age, the interest created is to belong.It is well known that the rule against perpetuity is founded on the principle that the liberty of alienation "shall not be exercised to its own destruction and that all contrivances shall be void which tend to create a perpetuity or place property forever out of the reach of the exercise of the power of alientation".The words "transfer of property" have been defined by section 5 of the Act to mean an act by which a living person conveys property in present or in future to one or more other living persons etc. The words "living persons" include a Company or association or body of individuals. Section 105 of the Act defines "lease".A lease of immovable property is a transfer or a right to enjoy such property made for a certain time express or implied or in perpetuity in consideration of a price paid or promised or of money, a share of crops, service or any other thing of value. A lease is not a mere contract but it is a transfer of an interest in land and creates an right in rem. Owing to the provisions of section 105 a lease in perpetuity can be created but even then an interest still remains the lessor which is called aare unable to agree. Section 14 is applicable only where there is transfer of property. Even if creation of a leasehold interest is a transfer of a right in property and would fall within the expression "transfer of property" the transfer was for a period of ten years only by means of the indenture Exh. P-1.The stipulation relating to renewal could not be regarded as transferring property or any rightssame principle would govern the present case.The clauses containing the option to get the lease renewed on the expiry of each term of ten years can by no means be regarded as creating an interest in property of the nature that would fall within the ambit of sectionequitable rule that the burden of a covenant runs with the land is to be found in section 40 of theAs pointed out in Mullas Transfer of Property Act, 5th Edn., at p. 194, section 40 expressly says that the right of the covenantee is not an interest in the land bound by the covenant nor an easement. It is not an interest because the Act does not recognise equitable estates and it cannot be said as Sir George Jessel said in Londonand South Western Rly. v. Gomm, (1882) 20 Ch D 562 at p. 580thatif a covenant "binds the land it creates an equitable interest in the land." The expression "covenant runs with the land" has been taken from the English law of real property. It is an exception to the general rule that all covenants are personal. Even on the footing that the clauses relating to renewal in the lease, in the present case, contain covenants running with the land the rule against perpetuity contained in section 14 of the Act would not be applicable as no interest in property has been created of the nature contemplated by that provision. | 0 | 1,838 | 649 | ### 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:
or of money, a share of crops, service or any other thing of value. A lease is not a mere contract but it is a transfer of an interest in land and creates an right in rem. Owing to the provisions of section 105 a lease in perpetuity can be created but even then an interest still remains the lessor which is called a reversion.5. It is not disputed on behalf of the appellant that a lease in perpetuity could have been created but the lease in the present case was not of that kind and was for a period of ten years only in the first instance. It is said that the mischief is created by the clauses relating to renewal which are covenants that run with the land. It is pointed out that on a correct construction of the renewal clauses the rule of perpetuity contained in section 14 would be immediately attracted.We are unable to agree. Section 14 is applicable only where there is transfer of property. Even if creation of a leasehold interest is a transfer of a right in property and would fall within the expression "transfer of property" the transfer was for a period of ten years only by means of the indenture Exh. P-1.The stipulation relating to renewal could not be regarded as transferring property or any rights therein.6. In Ganesh Sonar v. Purnendu Narayan Singha, AIR 1962 Pat 201 in the case of lease of land an option had been given to the lessor determine the lease and take possession of the leasehold land under specified conditions. The question was whether such a covenant would fall within the rule laid down in the English case Woodall v. Clifton, 1905-2 Ch 257 in which it was held that a proviso in a lease giving an option to the lessor to purchase the fee simple of the land at a certain rate was invalid as infringing the rule against perpetuity. The Patna High Court distinguished the English decision quite rightly on the ground that after the coming into force of the Act a contract for the sale of immovable property did not itself create an interest in such property as was the case under the English law. According to the Patna decision the option given by the lessee to the lessor to resume the leasehold land was merely a personal covenant and was not a covenant which created an interest in land and so the rule against perpetuity contained in section 14 of the Act was not applicable. The same principle would govern the present case.The clauses containing the option to get the lease renewed on the expiry of each term of ten years can by no means be regarded as creating an interest in property of the nature that would fall within the ambit of section 14.7. Even under the English law the court would give effect to a covenant for perpetual renewal so long as the intention is clear and it will not be open to objection on the ground of perpetuity; See Halsburys Laws of England, 3rd Edn. Vol. 23 p. 627. In Muller v. Trafford,(1901) 1 Ch 54 it was held that the covenant in a lease for renewal was not strictly a covenant for renewal. But Farwell J., proceeded to observe that a covenant to renew had been held for at least two centuries to be a covenant running with the land. If so, then no question of perpetuity would arise. It appears that in England whatever might have been the reason, the objection of perpetuity had never been taken to cases of covenants for renewal. The following observations of Farwell J., which were quoted with approval by Lord Evershed M. R. in Weg Motors Ltd. v. Hales, 1961-3 All ER 181 at p. 188 are noteworthy;"But now I will assume that this is a covenant for renewal running with the land; it is then in my opinion free from any taint of perpetuity because it is annexed to the land. See Rogers v. Hosegood, (1900) 2 Ch. 388."The equitable rule that the burden of a covenant runs with the land is to be found in section 40 of the Act. This section reads:40. "Where for the more beneficial enjoyment of his own immoveable property, a third person, has, independently of any interest in the immoveable property of another or of any easement thereon, a right to restrain the enjoyment in a particular manner of the latter property, orwhere a third person is entitled to the benefit of an obligation arising out of contract, and annexed to the ownership of immovable property, but not amounting to an interest therein or easement thereon.such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation nor against such property in his hands."8. As pointed out in Mullas Transfer of Property Act, 5th Edn., at p. 194, section 40 expressly says that the right of the covenantee is not an interest in the land bound by the covenant nor an easement. It is not an interest because the Act does not recognise equitable estates and it cannot be said as Sir George Jessel said in London and South Western Rly. v. Gomm, (1882) 20 Ch D 562 at p. 580 thatif a covenant "binds the land it creates an equitable interest in the land." The expression "covenant runs with the land" has been taken from the English law of real property. It is an exception to the general rule that all covenants are personal. Even on the footing that the clauses relating to renewal in the lease, in the present case, contain covenants running with the land the rule against perpetuity contained in section 14 of the Act would not be applicable as no interest in property has been created of the nature contemplated by that provision.
### Response:
0
### Explanation:
4. The rule against perpetuity is embodied in S. 14 of the Transfer of Property Act, hereinafter called the Act. According to it no transfer of property can operate to create an interest which is to take effect after the lifetime of one or more persons living at the date of such transfer and the minority of some persons who shall be in existence at the expiration of that period and to whom, if he attains full age, the interest created is to belong.It is well known that the rule against perpetuity is founded on the principle that the liberty of alienation "shall not be exercised to its own destruction and that all contrivances shall be void which tend to create a perpetuity or place property forever out of the reach of the exercise of the power of alientation".The words "transfer of property" have been defined by section 5 of the Act to mean an act by which a living person conveys property in present or in future to one or more other living persons etc. The words "living persons" include a Company or association or body of individuals. Section 105 of the Act defines "lease".A lease of immovable property is a transfer or a right to enjoy such property made for a certain time express or implied or in perpetuity in consideration of a price paid or promised or of money, a share of crops, service or any other thing of value. A lease is not a mere contract but it is a transfer of an interest in land and creates an right in rem. Owing to the provisions of section 105 a lease in perpetuity can be created but even then an interest still remains the lessor which is called aare unable to agree. Section 14 is applicable only where there is transfer of property. Even if creation of a leasehold interest is a transfer of a right in property and would fall within the expression "transfer of property" the transfer was for a period of ten years only by means of the indenture Exh. P-1.The stipulation relating to renewal could not be regarded as transferring property or any rightssame principle would govern the present case.The clauses containing the option to get the lease renewed on the expiry of each term of ten years can by no means be regarded as creating an interest in property of the nature that would fall within the ambit of sectionequitable rule that the burden of a covenant runs with the land is to be found in section 40 of theAs pointed out in Mullas Transfer of Property Act, 5th Edn., at p. 194, section 40 expressly says that the right of the covenantee is not an interest in the land bound by the covenant nor an easement. It is not an interest because the Act does not recognise equitable estates and it cannot be said as Sir George Jessel said in Londonand South Western Rly. v. Gomm, (1882) 20 Ch D 562 at p. 580thatif a covenant "binds the land it creates an equitable interest in the land." The expression "covenant runs with the land" has been taken from the English law of real property. It is an exception to the general rule that all covenants are personal. Even on the footing that the clauses relating to renewal in the lease, in the present case, contain covenants running with the land the rule against perpetuity contained in section 14 of the Act would not be applicable as no interest in property has been created of the nature contemplated by that provision.
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Sheikh Abdul Rehman Vs. Jagat Ram Aryan | affirmation before the Assistant Returning Officer, that the oath forms had been filled up and signed before they were presented to him and were not signed in his presence. In support of his case the respondent examined Kahan Singh, the Assistant Returning Officer, and Abdul Gani, the Returning Officer. The High Court accepted the respondents case.10. It should be remembered that the requirement of making and subscribing an oath or affirmation was inserted in Section 51 (a) of the J. and K. Constitution by the Constitution Sixth Amendment Act 1965.There is ground for believing that Narain Dass an Nikka Ram were not aware of this provision and for this reason they omitted to make or subscribe any oath or affirmation before the Assistant Returning Officer.11. Our attention was drawn to Instruction No. 7 (7) in Chapter II at p. 19 of the Handbook for Returning Officers, issued by the Election Commission, India, for General Elections, 1967. The aforesaid instruction was as follows:-"The oath or affirmation has first to be made and then signed by the candidate before the authorised officer. It should be borne in mind that mere signing on the paper on which the form of oath is written out is not sufficient. The candidate must make the oath before the authorised officer. Accordingly he will ask the candidate to read aloud the oath or affirmation in English or the regional language and then to sign and date the paper on which the oath or affirmation is written. In the case of illiterate persons who want to contest elections, and who cannot properly make and subscribe the oath or affirmation the authorised officer, should read out the prescribed oath and ask the candidate to repeat the same and thereafter take his thumb impression on the form on which the oath is printed or cyclostyled in token of his having subscribed the oath. The authorised officer should endorse on this paper that the oath or affirmation has been made and subscribed before the candidate (sic) on that day. He will immediately furnish to the candidate a certified copy thereof keeping a copy for year (sic) record. The candidate will produce this copy as evidence before you at the time of scrutiny of nomination papers. This copy will be given to the candidate forthwith without his applying for it, nor any fee be charged for it."Kahan Singh the Assistant Returning Officer was not conversant with these instructions. He did not ask either Narain Dass or Nikka Ram to read the oath or to sign the oath form in his presence. But the breach of these instructions does not entitle them to say that they had made and subscribed the oath before the Assistant Returning Officer when in fact they did not make or subscribe the oath before him.12. It is admitted by the appellant that the oath forms filed by Narain Dass and Nikka Ram did not bear any endorse- ment of the Assistant Returning Officer stating that the oath or affirmation had been made and subscribed before him nor was any certificate of such endorsement furnished to them. The absence of the endorsement on the oath forms tend to suggest that no oath or affirmation was made and subscribed by them before the Assistant Returning Officer. Neither Narain Dass nor Nikka Ram could produce before the Returning Officer, Abdul Gani any evidence of their making and subscribing the oath or affirmation. Abdul Gani gave them an opportunity to produce affidavits in proof of this fact but they did hot file any affidavit or any other evidence before him. The appellant examined witnesses to prove that attempts were made to file such affidavits, but the High Court rightly rejected the testimony of these witnesses. The materials on the record corroborate the testimony of Kahan Singh, the Assistant Returning Officer that Narain Dass and Nikka Ram did not sign the oath forms in his presence and did not make the oath or affirmation before him. Narain Dass and Nikka Ram were Jan Sangh candidates. Abdul Qayum and Abdul Rehman were their party men. All of them were interested witnesses. Having regard to all the materials on the record it is impossible to prefer their testimony to that of Kahan Singh. In agreement with the High Court we hold that neither Narain Dass and Nikka Ram signed the oath forms before the Assistant Returning Officer nor did they make the oath or affirmation before him.13. On January 23, 1967 both Narain Dass and Nikka Ram filed with the Assistant Returning Officer signed and filled up oath forms along with their nomination papers. In our opinion, this was not sufficient compliance with the requirement of Section 51 (a).14. In Pashupati Nath v. Harihar Prasad, AIR 1968 SC 1064 this Court held that the nomination paper was liable to be rejected under Section 36 (2) (a) of the Representation of the People Act, 1951 corresponding to Section 47 (2) (a) of the J. and K. Representation of the People Act, 1957 if the qualification required by Article 173 (a) of the Constitution corresponding to Section 51 (a) of the J. and K. Constitution did not exist on the date of scrutiny of nominations.In that case no signed oath form was attached to the nomination paper or filed before the date fixed for scrutiny. In the present case signed oath forms along with nomination papers were filed with the Assistant Returning Officer on January 23, 1967 before the date fixed for scrutiny. But this fact makes no difference. They neither made nor subscribed the oath or affirmation before the Assistant Returning Officer as required by Section 51 (a). On the date fixed for the scrutiny of nominations they were not qualified to be chosen to fill the seat in the legislature under Sec. 51 (a) of the J. and K. Constitution and their nomination papers were liable to be rejected under Section 47 (2) (a) of the J. and K. Representation of the People Act, 1957. | 0[ds]10. It should be remembered that the requirement of making and subscribing an oath or affirmation was inserted in Section 51 (a) of the J. and K. Constitution by the Constitution Sixth Amendment Act 1965.There is ground for believing that Narain Dass an Nikka Ram were not aware of this provision and for this reason they omitted to make or subscribe any oath or affirmation before the Assistant Returning Officer.11. Our attention was drawn to Instruction No. 7 (7) in Chapter II at p. 19 of the Handbook for Returning Officers, issued by the Election Commission, India, for General Elections, 1967. The aforesaid instruction was asoath or affirmation has first to be made and then signed by the candidate before the authorised officer. It should be borne in mind that mere signing on the paper on which the form of oath is written out is not sufficient. The candidate must make the oath before the authorised officer. Accordingly he will ask the candidate to read aloud the oath or affirmation in English or the regional language and then to sign and date the paper on which the oath or affirmation is written. In the case of illiterate persons who want to contest elections, and who cannot properly make and subscribe the oath or affirmation the authorised officer, should read out the prescribed oath and ask the candidate to repeat the same and thereafter take his thumb impression on the form on which the oath is printed or cyclostyled in token of his having subscribed the oath. The authorised officer should endorse on this paper that the oath or affirmation has been made and subscribed before the candidate (sic) on that day. He will immediately furnish to the candidate a certified copy thereof keeping a copy for year (sic) record. The candidate will produce this copy as evidence before you at the time of scrutiny of nomination papers. This copy will be given to the candidate forthwith without his applying for it, nor any fee be charged forSingh the Assistant Returning Officer was not conversant with these instructions. He did not ask either Narain Dass or Nikka Ram to read the oath or to sign the oath form in his presence. But the breach of these instructions does not entitle them to say that they had made and subscribed the oath before the Assistant Returning Officer when in fact they did not make or subscribe the oath before him.Our attention was drawn to Instruction No. 7 (7) in Chapter II at p. 19 of the Handbook for Returning Officers, issued by the Election Commission, India, for General Elections, 1967. The aforesaid instruction was asoath or affirmation has first to be made and then signed by the candidate before the authorised officer. It should be borne in mind that mere signing on the paper on which the form of oath is written out is not sufficient. The candidate must make the oath before the authorised officer. Accordingly he will ask the candidate to read aloud the oath or affirmation in English or the regional language and then to sign and date the paper on which the oath or affirmation is written. In the case of illiterate persons who want to contest elections, and who cannot properly make and subscribe the oath or affirmation the authorised officer, should read out the prescribed oath and ask the candidate to repeat the same and thereafter take his thumb impression on the form on which the oath is printed or cyclostyled in token of his having subscribed the oath. The authorised officer should endorse on this paper that the oath or affirmation has been made and subscribed before the candidate (sic) on that day. He will immediately furnish to the candidate a certified copy thereof keeping a copy for year (sic) record. The candidate will produce this copy as evidence before you at the time of scrutiny of nomination papers. This copy will be given to the candidate forthwith without his applying for it, nor any fee be charged forh the Assistant Returning Officer was not conversant with these instructions. He did not ask either Narain Dass or Nikka Ram to read the oath or to sign the oath form in his presence. But the breach of these instructions does not entitle them to say that they had made and subscribed the oath before the Assistant Returning Officer when in fact they did not make or subscribe the oath before him.him.13. On January 23, 1967 both Narain Dass and Nikka Ram filed with the Assistant Returning Officer signed and filled up oath forms along with their nomination papers. In our opinion, this was not sufficient compliance with the requirement of Section 51the present case signed oath forms along with nomination papers were filed with the Assistant Returning Officer on January 23, 1967 before the date fixed for scrutiny. But this fact makes no difference. They neither made nor subscribed the oath or affirmation before the Assistant Returning Officer as required by Section 51 (a). On the date fixed for the scrutiny of nominations they were not qualified to be chosen to fill the seat in the legislature under Sec. 51 (a) of the J. and K. Constitution and their nomination papers were liable to be rejected under Section 47 (2) (a) of the J. and K. Representation of the People Act, 1957.It is admitted by the appellant that the oath forms filed by Narain Dass and Nikka Ram did not bear any endorse- ment of the Assistant Returning Officer stating that the oath or affirmation had been made and subscribed before him nor was any certificate of such endorsement furnished to them. The absence of the endorsement on the oath forms tend to suggest that no oath or affirmation was made and subscribed by them before the Assistant Returning Officer. Neither Narain Dass nor Nikka Ram could produce before the Returning Officer, Abdul Gani any evidence of their making and subscribing the oath or affirmation. Abdul Gani gave them an opportunity to produce affidavits in proof of this fact but they did hot file any affidavit or any other evidence before him. The appellant examined witnesses to prove that attempts were made to file such affidavits, but the High Court rightly rejected the testimony of these witnesses. The materials on the record corroborate the testimony of Kahan Singh, the Assistant Returning Officer that Narain Dass and Nikka Ram did not sign the oath forms in his presence and did not make the oath or affirmation before him. Narain Dass and Nikka Ram were Jan Sangh candidates. Abdul Qayum and Abdul Rehman were their party men. All of them were interested witnesses. Having regard to all the materials on the record it is impossible to prefer their testimony to that of Kahan Singh. In agreement with the High Court we hold that neither Narain Dass and Nikka Ram signed the oath forms before the Assistant Returning Officer nor did they make the oath or affirmation before | 0 | 2,188 | 1,260 | ### Instruction:
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affirmation before the Assistant Returning Officer, that the oath forms had been filled up and signed before they were presented to him and were not signed in his presence. In support of his case the respondent examined Kahan Singh, the Assistant Returning Officer, and Abdul Gani, the Returning Officer. The High Court accepted the respondents case.10. It should be remembered that the requirement of making and subscribing an oath or affirmation was inserted in Section 51 (a) of the J. and K. Constitution by the Constitution Sixth Amendment Act 1965.There is ground for believing that Narain Dass an Nikka Ram were not aware of this provision and for this reason they omitted to make or subscribe any oath or affirmation before the Assistant Returning Officer.11. Our attention was drawn to Instruction No. 7 (7) in Chapter II at p. 19 of the Handbook for Returning Officers, issued by the Election Commission, India, for General Elections, 1967. The aforesaid instruction was as follows:-"The oath or affirmation has first to be made and then signed by the candidate before the authorised officer. It should be borne in mind that mere signing on the paper on which the form of oath is written out is not sufficient. The candidate must make the oath before the authorised officer. Accordingly he will ask the candidate to read aloud the oath or affirmation in English or the regional language and then to sign and date the paper on which the oath or affirmation is written. In the case of illiterate persons who want to contest elections, and who cannot properly make and subscribe the oath or affirmation the authorised officer, should read out the prescribed oath and ask the candidate to repeat the same and thereafter take his thumb impression on the form on which the oath is printed or cyclostyled in token of his having subscribed the oath. The authorised officer should endorse on this paper that the oath or affirmation has been made and subscribed before the candidate (sic) on that day. He will immediately furnish to the candidate a certified copy thereof keeping a copy for year (sic) record. The candidate will produce this copy as evidence before you at the time of scrutiny of nomination papers. This copy will be given to the candidate forthwith without his applying for it, nor any fee be charged for it."Kahan Singh the Assistant Returning Officer was not conversant with these instructions. He did not ask either Narain Dass or Nikka Ram to read the oath or to sign the oath form in his presence. But the breach of these instructions does not entitle them to say that they had made and subscribed the oath before the Assistant Returning Officer when in fact they did not make or subscribe the oath before him.12. It is admitted by the appellant that the oath forms filed by Narain Dass and Nikka Ram did not bear any endorse- ment of the Assistant Returning Officer stating that the oath or affirmation had been made and subscribed before him nor was any certificate of such endorsement furnished to them. The absence of the endorsement on the oath forms tend to suggest that no oath or affirmation was made and subscribed by them before the Assistant Returning Officer. Neither Narain Dass nor Nikka Ram could produce before the Returning Officer, Abdul Gani any evidence of their making and subscribing the oath or affirmation. Abdul Gani gave them an opportunity to produce affidavits in proof of this fact but they did hot file any affidavit or any other evidence before him. The appellant examined witnesses to prove that attempts were made to file such affidavits, but the High Court rightly rejected the testimony of these witnesses. The materials on the record corroborate the testimony of Kahan Singh, the Assistant Returning Officer that Narain Dass and Nikka Ram did not sign the oath forms in his presence and did not make the oath or affirmation before him. Narain Dass and Nikka Ram were Jan Sangh candidates. Abdul Qayum and Abdul Rehman were their party men. All of them were interested witnesses. Having regard to all the materials on the record it is impossible to prefer their testimony to that of Kahan Singh. In agreement with the High Court we hold that neither Narain Dass and Nikka Ram signed the oath forms before the Assistant Returning Officer nor did they make the oath or affirmation before him.13. On January 23, 1967 both Narain Dass and Nikka Ram filed with the Assistant Returning Officer signed and filled up oath forms along with their nomination papers. In our opinion, this was not sufficient compliance with the requirement of Section 51 (a).14. In Pashupati Nath v. Harihar Prasad, AIR 1968 SC 1064 this Court held that the nomination paper was liable to be rejected under Section 36 (2) (a) of the Representation of the People Act, 1951 corresponding to Section 47 (2) (a) of the J. and K. Representation of the People Act, 1957 if the qualification required by Article 173 (a) of the Constitution corresponding to Section 51 (a) of the J. and K. Constitution did not exist on the date of scrutiny of nominations.In that case no signed oath form was attached to the nomination paper or filed before the date fixed for scrutiny. In the present case signed oath forms along with nomination papers were filed with the Assistant Returning Officer on January 23, 1967 before the date fixed for scrutiny. But this fact makes no difference. They neither made nor subscribed the oath or affirmation before the Assistant Returning Officer as required by Section 51 (a). On the date fixed for the scrutiny of nominations they were not qualified to be chosen to fill the seat in the legislature under Sec. 51 (a) of the J. and K. Constitution and their nomination papers were liable to be rejected under Section 47 (2) (a) of the J. and K. Representation of the People Act, 1957.
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affirmation in English or the regional language and then to sign and date the paper on which the oath or affirmation is written. In the case of illiterate persons who want to contest elections, and who cannot properly make and subscribe the oath or affirmation the authorised officer, should read out the prescribed oath and ask the candidate to repeat the same and thereafter take his thumb impression on the form on which the oath is printed or cyclostyled in token of his having subscribed the oath. The authorised officer should endorse on this paper that the oath or affirmation has been made and subscribed before the candidate (sic) on that day. He will immediately furnish to the candidate a certified copy thereof keeping a copy for year (sic) record. The candidate will produce this copy as evidence before you at the time of scrutiny of nomination papers. This copy will be given to the candidate forthwith without his applying for it, nor any fee be charged forSingh the Assistant Returning Officer was not conversant with these instructions. He did not ask either Narain Dass or Nikka Ram to read the oath or to sign the oath form in his presence. But the breach of these instructions does not entitle them to say that they had made and subscribed the oath before the Assistant Returning Officer when in fact they did not make or subscribe the oath before him.Our attention was drawn to Instruction No. 7 (7) in Chapter II at p. 19 of the Handbook for Returning Officers, issued by the Election Commission, India, for General Elections, 1967. The aforesaid instruction was asoath or affirmation has first to be made and then signed by the candidate before the authorised officer. It should be borne in mind that mere signing on the paper on which the form of oath is written out is not sufficient. The candidate must make the oath before the authorised officer. Accordingly he will ask the candidate to read aloud the oath or affirmation in English or the regional language and then to sign and date the paper on which the oath or affirmation is written. In the case of illiterate persons who want to contest elections, and who cannot properly make and subscribe the oath or affirmation the authorised officer, should read out the prescribed oath and ask the candidate to repeat the same and thereafter take his thumb impression on the form on which the oath is printed or cyclostyled in token of his having subscribed the oath. The authorised officer should endorse on this paper that the oath or affirmation has been made and subscribed before the candidate (sic) on that day. He will immediately furnish to the candidate a certified copy thereof keeping a copy for year (sic) record. The candidate will produce this copy as evidence before you at the time of scrutiny of nomination papers. This copy will be given to the candidate forthwith without his applying for it, nor any fee be charged forh the Assistant Returning Officer was not conversant with these instructions. He did not ask either Narain Dass or Nikka Ram to read the oath or to sign the oath form in his presence. But the breach of these instructions does not entitle them to say that they had made and subscribed the oath before the Assistant Returning Officer when in fact they did not make or subscribe the oath before him.him.13. On January 23, 1967 both Narain Dass and Nikka Ram filed with the Assistant Returning Officer signed and filled up oath forms along with their nomination papers. In our opinion, this was not sufficient compliance with the requirement of Section 51the present case signed oath forms along with nomination papers were filed with the Assistant Returning Officer on January 23, 1967 before the date fixed for scrutiny. But this fact makes no difference. They neither made nor subscribed the oath or affirmation before the Assistant Returning Officer as required by Section 51 (a). On the date fixed for the scrutiny of nominations they were not qualified to be chosen to fill the seat in the legislature under Sec. 51 (a) of the J. and K. Constitution and their nomination papers were liable to be rejected under Section 47 (2) (a) of the J. and K. Representation of the People Act, 1957.It is admitted by the appellant that the oath forms filed by Narain Dass and Nikka Ram did not bear any endorse- ment of the Assistant Returning Officer stating that the oath or affirmation had been made and subscribed before him nor was any certificate of such endorsement furnished to them. The absence of the endorsement on the oath forms tend to suggest that no oath or affirmation was made and subscribed by them before the Assistant Returning Officer. Neither Narain Dass nor Nikka Ram could produce before the Returning Officer, Abdul Gani any evidence of their making and subscribing the oath or affirmation. Abdul Gani gave them an opportunity to produce affidavits in proof of this fact but they did hot file any affidavit or any other evidence before him. The appellant examined witnesses to prove that attempts were made to file such affidavits, but the High Court rightly rejected the testimony of these witnesses. The materials on the record corroborate the testimony of Kahan Singh, the Assistant Returning Officer that Narain Dass and Nikka Ram did not sign the oath forms in his presence and did not make the oath or affirmation before him. Narain Dass and Nikka Ram were Jan Sangh candidates. Abdul Qayum and Abdul Rehman were their party men. All of them were interested witnesses. Having regard to all the materials on the record it is impossible to prefer their testimony to that of Kahan Singh. In agreement with the High Court we hold that neither Narain Dass and Nikka Ram signed the oath forms before the Assistant Returning Officer nor did they make the oath or affirmation before
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The State Of Bihar Vs. M/S. Karam Chand Thapar & Brothers Ltd | accordance with the provisions of the Arbitration Act 1 of 1940. You are, therefore, requested to please attend the Divisional Office immediately to execute necessary agreement for the purpose."Pursuant to this letter, the respondent joined in the execution of the agreement dated February 6, 1948, along with the Executive Engineer for referring the dispute to arbitration. On February 25, 1948, the Secretary informed the arbitrator that the draft agreement had been slightly modified in consultation with the Government Pleader, and he also wrote to the Executive Engineer that certain formal corrections should be made in the agreement and signed by both the parties. And that was done.3. Having carefully gone through the correspondence, we agree with the learned Judges of the High Court that the Executive Engineer had been authorised by the Governor acting through his Secretary to execute the agreement for reference to arbitration. It will be seen that it was the Secretary who from the very inception took the leading part in arranging for arbitration. He was throughout speaking in the name of and on behalf of the Government and he did so "as directed." The subject-matter of the arbitration was a claim which concerned the Government. The proposal at the earlier stages to amend cl. 23 of the original contract so as to include an arbitration shows that the intention of the parties was to treat the agreement for arbitration a part and parcel of that contract. Even after the agreement was executed, the Secretary made corrections and modifications in the agreement on the basis that it was the Government that was a party thereto. The conclusion from all this is, in our judgment, irresistible that Y. K. Lall, the Executive Engineer had been authorised to execute the agreement dated February 6, 1948.4. It was suggested that the Secretary was possibly labouring under a mistaken notion that the agreement to refer to arbitration was covered by item 2 and acting under that misconception he directed Y. K. Lall to execute the agreement. Even if that were so, that would not make any difference in the position, because the Secretary undoubtedly did intend that Y. K. Lall should execute the agreement and that is all that is required under S. 175 (3).5. It was further argued for the appellant that there being a Government notification of a formal character, we should not travel outside it and find authority in a person who is not authorised thereunder. But S. 175 (3) does not prescribe any particular mode in which authority must be conferred. Normally, no doubt, such conferment will be by notification in the Official Gazette, but there is nothing in the section itself to preclude authorisation being conferred ad hoc on any person, and when that is established, the requirements of the section must be held to be satisfied. In the result, we hold that the agreement dated February 6, 1948, was executed by a person who was authorised to do so by the Governor, and in consequence there was a valid reference to arbitration.6. It is next contended that as the copy of the award in court was unstamped, no decree could have been passed thereon. The facts are that the arbitrator sent to each of the parties a copy of the award signed by him and a third copy also signed by him was sent to the court. The copy of the award which was sent to the Government would appear to have been insufficiently stamped. If that had been produced in court, it could have been validated on payment of the deficiency and penalty under S. 35 of the Indian Stamp Act, 1899. But the Government has failed to produce the same. The copy of the award which was sent to the respondents is said to have been seized by the police along with other papers and is not now available. When the third copy was received in court, the respondents paid the requisite stamp duty under S. 35 of the Stamp Act and had it validated. Now the contention of the appellant is that the instrument actually before the court is, what it purports to be, "a certified copy", and that under S. 35 of the Stamp Act there can be validation only of the original, when it is unstamped or insufficiently stamped, that the document in court which is a copy cannot be validated and "acted upon" and that in consequence no decree could be passed thereon. The law is no doubt well-settled that the copy of an instrument cannot be validated. That was held in Rajah of Bobbili v. Inuganti China Sitaramasami Garu, 26 Ind App 262, where it was observed :"The provisions of this section (section 35) which allow a document to be admitted in evidence on payment of penalty, have no application when the original document, which was unstamped or was insufficiently stamped, has not been produced; and, accordingly, secondary evidence of its contents cannot be given. To hold otherwise would be to add to the Act a provision which it does not contain. Payment of penalty will not render secondary evidence admissible, for under the stamp law penalty is leviable only on an unstamped or insufficiently stamped document actually produced in Court and that law does not provide for the levy of any penalty on lost documents"7. Therefore, the question is whether the award which was sent by the arbitrator to the court is the original instrument or a copy thereof. There cannot, in our opinion, be any doubt that it is the original and not a copy of the award. What the arbitrator did was to prepare the award in triplicate, sign all of them and send one each to the party and the third to the Court. This would be an original instrument, and the words, "certified copy" appearing thereon are a misdescription and cannot have the effect of altering the true character of the instrument. There is no substance in this contention of the appellant either. | 0[ds]3. Having carefully gone through the correspondence, we agree with the learned Judges of the High Court that the Executive Engineer had been authorised by the Governor acting through his Secretary to execute the agreement for reference to arbitration. It will be seen that it was the Secretary who from the very inception took the leading part in arranging for arbitration. He was throughout speaking in the name of and on behalf of the Government and he did so "as directed." The subject-matter of the arbitration was a claim which concerned the Government. The proposal at the earlier stages to amend cl. 23 of the original contract so as to include an arbitration shows that the intention of the parties was to treat the agreement for arbitration a part and parcel of that contract. Even after the agreement was executed, the Secretary made corrections and modifications in the agreement on the basis that it was the Government that was a party thereto. The conclusion from all this is, in our judgment, irresistible that Y. K. Lall, the Executive Engineer had been authorised to execute the agreement dated February 6, 1948.4. It was suggested that the Secretary was possibly labouring under a mistaken notion that the agreement to refer to arbitration was covered by item 2 and acting under that misconception he directed Y. K. Lall to execute the agreement. Even if that were so, that would not make any difference in the position, because the Secretary undoubtedly did intend that Y. K. Lall should execute the agreement and that is all that is required under S. 175S. 175 (3) does not prescribe any particular mode in which authority must be conferred. Normally, no doubt, such conferment will be by notification in the Official Gazette, but there is nothing in the section itself to preclude authorisation being conferred ad hoc on any person, and when that is established, the requirements of the section must be held to be satisfied. In the result, we hold that the agreement dated February 6, 1948, was executed by a person who was authorised to do so by the Governor, and in consequence there was a valid reference tofacts are that the arbitrator sent to each of the parties a copy of the award signed by him and a third copy also signed by him was sent to the court. The copy of the award which was sent to the Government would appear to have been insufficiently stamped. If that had been produced in court, it could have been validated on payment of the deficiency and penalty under S. 35 of the Indian Stamp Act, 1899. But the Government has failed to produce the same. The copy of the award which was sent to the respondents is said to have been seized by the police along with other papers and is not now available. When the third copy was received in court, the respondents paid the requisite stamp duty under S. 35 of the Stamp Act and had itcannot, in our opinion, be any doubt that it is the original and not a copy of the award. What the arbitrator did was to prepare the award in triplicate, sign all of them and send one each to the party and the third to the Court. This would be an original instrument, and the words, "certified copy" appearing thereon are a misdescription and cannot have the effect of altering the true character of the instrument. There is no substance in this contention of the appellant either. | 0 | 2,846 | 647 | ### Instruction:
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accordance with the provisions of the Arbitration Act 1 of 1940. You are, therefore, requested to please attend the Divisional Office immediately to execute necessary agreement for the purpose."Pursuant to this letter, the respondent joined in the execution of the agreement dated February 6, 1948, along with the Executive Engineer for referring the dispute to arbitration. On February 25, 1948, the Secretary informed the arbitrator that the draft agreement had been slightly modified in consultation with the Government Pleader, and he also wrote to the Executive Engineer that certain formal corrections should be made in the agreement and signed by both the parties. And that was done.3. Having carefully gone through the correspondence, we agree with the learned Judges of the High Court that the Executive Engineer had been authorised by the Governor acting through his Secretary to execute the agreement for reference to arbitration. It will be seen that it was the Secretary who from the very inception took the leading part in arranging for arbitration. He was throughout speaking in the name of and on behalf of the Government and he did so "as directed." The subject-matter of the arbitration was a claim which concerned the Government. The proposal at the earlier stages to amend cl. 23 of the original contract so as to include an arbitration shows that the intention of the parties was to treat the agreement for arbitration a part and parcel of that contract. Even after the agreement was executed, the Secretary made corrections and modifications in the agreement on the basis that it was the Government that was a party thereto. The conclusion from all this is, in our judgment, irresistible that Y. K. Lall, the Executive Engineer had been authorised to execute the agreement dated February 6, 1948.4. It was suggested that the Secretary was possibly labouring under a mistaken notion that the agreement to refer to arbitration was covered by item 2 and acting under that misconception he directed Y. K. Lall to execute the agreement. Even if that were so, that would not make any difference in the position, because the Secretary undoubtedly did intend that Y. K. Lall should execute the agreement and that is all that is required under S. 175 (3).5. It was further argued for the appellant that there being a Government notification of a formal character, we should not travel outside it and find authority in a person who is not authorised thereunder. But S. 175 (3) does not prescribe any particular mode in which authority must be conferred. Normally, no doubt, such conferment will be by notification in the Official Gazette, but there is nothing in the section itself to preclude authorisation being conferred ad hoc on any person, and when that is established, the requirements of the section must be held to be satisfied. In the result, we hold that the agreement dated February 6, 1948, was executed by a person who was authorised to do so by the Governor, and in consequence there was a valid reference to arbitration.6. It is next contended that as the copy of the award in court was unstamped, no decree could have been passed thereon. The facts are that the arbitrator sent to each of the parties a copy of the award signed by him and a third copy also signed by him was sent to the court. The copy of the award which was sent to the Government would appear to have been insufficiently stamped. If that had been produced in court, it could have been validated on payment of the deficiency and penalty under S. 35 of the Indian Stamp Act, 1899. But the Government has failed to produce the same. The copy of the award which was sent to the respondents is said to have been seized by the police along with other papers and is not now available. When the third copy was received in court, the respondents paid the requisite stamp duty under S. 35 of the Stamp Act and had it validated. Now the contention of the appellant is that the instrument actually before the court is, what it purports to be, "a certified copy", and that under S. 35 of the Stamp Act there can be validation only of the original, when it is unstamped or insufficiently stamped, that the document in court which is a copy cannot be validated and "acted upon" and that in consequence no decree could be passed thereon. The law is no doubt well-settled that the copy of an instrument cannot be validated. That was held in Rajah of Bobbili v. Inuganti China Sitaramasami Garu, 26 Ind App 262, where it was observed :"The provisions of this section (section 35) which allow a document to be admitted in evidence on payment of penalty, have no application when the original document, which was unstamped or was insufficiently stamped, has not been produced; and, accordingly, secondary evidence of its contents cannot be given. To hold otherwise would be to add to the Act a provision which it does not contain. Payment of penalty will not render secondary evidence admissible, for under the stamp law penalty is leviable only on an unstamped or insufficiently stamped document actually produced in Court and that law does not provide for the levy of any penalty on lost documents"7. Therefore, the question is whether the award which was sent by the arbitrator to the court is the original instrument or a copy thereof. There cannot, in our opinion, be any doubt that it is the original and not a copy of the award. What the arbitrator did was to prepare the award in triplicate, sign all of them and send one each to the party and the third to the Court. This would be an original instrument, and the words, "certified copy" appearing thereon are a misdescription and cannot have the effect of altering the true character of the instrument. There is no substance in this contention of the appellant either.
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3. Having carefully gone through the correspondence, we agree with the learned Judges of the High Court that the Executive Engineer had been authorised by the Governor acting through his Secretary to execute the agreement for reference to arbitration. It will be seen that it was the Secretary who from the very inception took the leading part in arranging for arbitration. He was throughout speaking in the name of and on behalf of the Government and he did so "as directed." The subject-matter of the arbitration was a claim which concerned the Government. The proposal at the earlier stages to amend cl. 23 of the original contract so as to include an arbitration shows that the intention of the parties was to treat the agreement for arbitration a part and parcel of that contract. Even after the agreement was executed, the Secretary made corrections and modifications in the agreement on the basis that it was the Government that was a party thereto. The conclusion from all this is, in our judgment, irresistible that Y. K. Lall, the Executive Engineer had been authorised to execute the agreement dated February 6, 1948.4. It was suggested that the Secretary was possibly labouring under a mistaken notion that the agreement to refer to arbitration was covered by item 2 and acting under that misconception he directed Y. K. Lall to execute the agreement. Even if that were so, that would not make any difference in the position, because the Secretary undoubtedly did intend that Y. K. Lall should execute the agreement and that is all that is required under S. 175S. 175 (3) does not prescribe any particular mode in which authority must be conferred. Normally, no doubt, such conferment will be by notification in the Official Gazette, but there is nothing in the section itself to preclude authorisation being conferred ad hoc on any person, and when that is established, the requirements of the section must be held to be satisfied. In the result, we hold that the agreement dated February 6, 1948, was executed by a person who was authorised to do so by the Governor, and in consequence there was a valid reference tofacts are that the arbitrator sent to each of the parties a copy of the award signed by him and a third copy also signed by him was sent to the court. The copy of the award which was sent to the Government would appear to have been insufficiently stamped. If that had been produced in court, it could have been validated on payment of the deficiency and penalty under S. 35 of the Indian Stamp Act, 1899. But the Government has failed to produce the same. The copy of the award which was sent to the respondents is said to have been seized by the police along with other papers and is not now available. When the third copy was received in court, the respondents paid the requisite stamp duty under S. 35 of the Stamp Act and had itcannot, in our opinion, be any doubt that it is the original and not a copy of the award. What the arbitrator did was to prepare the award in triplicate, sign all of them and send one each to the party and the third to the Court. This would be an original instrument, and the words, "certified copy" appearing thereon are a misdescription and cannot have the effect of altering the true character of the instrument. There is no substance in this contention of the appellant either.
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State of Madhya Pradesh and Another Vs. K. K. Shukla and Company | Disputes having arisen between the appellants and the respondent, a reference was made to arbitration under Section 7 of the M.P. Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as "the Act"). Before the Tribunal, it was contended that having availed of arbitration under clause 29 of the contract it was not open to invoke Section 7 of the Act. This contention was rejected. A revision petition was filed under Section 19 of the Act in the Madhya Pradesh High Court. The High Court upheld the view of the Arbitral Tribunal. Hence this appeal by special leave. In this appeal the limited question raised for consideration is as to the scope of clause 29(2) of the contract between the parties under which the respondent executed certain works and effect of Section 7 of the Act upon the same. The contention put forth before us is that in terms of clause 29 of the contract the respondent had invoked the jurisdiction of the Superintending Engineer and the Chief Engineer and when their decision went against it, sought to avail of the remedy under provisions of Section 7 of the Act; that, it is not open to the party having acquiesced in the arbitration proceedings under the contract to seek for second reference for arbitration. The Superintending Engineer under clause 29(2) is empowered to decide all questions relating to the meaning of the specifications, designs, drawings and constructions mentioned in the contract and as to the quality of workmanship or materials used in the work or as to any other question, claim, right, matter or thing whatsoever, in any way arising out of or relating to the contract, designs, drawings, specification estimates, instructions, orders or these conditions, or otherwise concerning the work, or the execution, or failure to execute the same, whether arising during the progress of the work or after the completion of abandonment and the Superintending Engineer will have to give his decision after giving an opportunity to the party to-the contract. If any party is not satisfied with the decision of the Superintending Engineer, it may make a reference to the Chief Engineer within 30 days from the date of communication of the decision of the Superintending Engineer and the Chief Engineer will give his decision after hearing the parties which shall be final, conclusive and binding on the parties.These clauses are sought to be interpreted as clauses for arbitration. We fail to understand as to how these clauses can be understood to be one referring the matter to arbitration at all. So far as the Superintending Engineer is concerned, he has to decide certain questions which we have adverted to and upon his decision the matter is referred to the Chief Engineer for further decision. These two provisions made in the contract are only to make a fair provision in the contract to settle any of the claims that may arise in the course of execution of contracts and the matter cannot be stretched so as to elevate to the level of an arbitration clause. Neither the Superintending Engineer nor the Chief Engineer can be characterised as discharging the functions of an arbitrator. In that view of the matter, we do not think the contention put forth on behalf of the appellant that the respondent having availed of the arbitration as provided under clause 29 is trying to seek another remedy as provided under Section 7 of the Act is tenable. In the circumstances, the effect of Section 7 upon clause 29 does not arise for consideration at all. | 0[ds]The Superintending Engineer under clause 29(2) is empowered to decide all questions relating to the meaning of the specifications, designs, drawings and constructions mentioned in the contract and as to the quality of workmanship or materials used in the work or as to any other question, claim, right, matter or thing whatsoever, in any way arising out of or relating to the contract, designs, drawings, specification estimates, instructions, orders or these conditions, or otherwise concerning the work, or the execution, or failure to execute the same, whether arising during the progress of the work or after the completion of abandonment and the Superintending Engineer will have to give his decision after giving an opportunity to the partycontract. If any party is not satisfied with the decision of the Superintending Engineer, it may make a reference to the Chief Engineer within 30 days from the date of communication of the decision of the Superintending Engineer and the Chief Engineer will give his decision after hearing the parties which shall be final, conclusive and binding on the parties.These clauses are sought to be interpreted as clauses for arbitration. We fail to understand as to how these clauses can be understood to be one referring the matter to arbitration at all. So far as the Superintending Engineer is concerned, he has to decide certain questions which we have adverted to and upon his decision the matter is referred to the Chief Engineer for further decision. These two provisions made in the contract are only to make a fair provision in the contract to settle any of the claims that may arise in the course of execution of contracts and the matter cannot be stretched so as to elevate to the level of an arbitration clause. Neither the Superintending Engineer nor the Chief Engineer can be characterised as discharging the functions of an arbitrator. In that view of the matter, we do not think the contention put forth on behalf of the appellant that the respondent having availed of the arbitration as provided under clause 29 is trying to seek another remedy as provided under Section 7 of the Act is tenable. In the circumstances, the effect of Section 7 upon clause 29 does not arise for consideration at all. | 0 | 644 | 412 | ### 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:
Disputes having arisen between the appellants and the respondent, a reference was made to arbitration under Section 7 of the M.P. Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as "the Act"). Before the Tribunal, it was contended that having availed of arbitration under clause 29 of the contract it was not open to invoke Section 7 of the Act. This contention was rejected. A revision petition was filed under Section 19 of the Act in the Madhya Pradesh High Court. The High Court upheld the view of the Arbitral Tribunal. Hence this appeal by special leave. In this appeal the limited question raised for consideration is as to the scope of clause 29(2) of the contract between the parties under which the respondent executed certain works and effect of Section 7 of the Act upon the same. The contention put forth before us is that in terms of clause 29 of the contract the respondent had invoked the jurisdiction of the Superintending Engineer and the Chief Engineer and when their decision went against it, sought to avail of the remedy under provisions of Section 7 of the Act; that, it is not open to the party having acquiesced in the arbitration proceedings under the contract to seek for second reference for arbitration. The Superintending Engineer under clause 29(2) is empowered to decide all questions relating to the meaning of the specifications, designs, drawings and constructions mentioned in the contract and as to the quality of workmanship or materials used in the work or as to any other question, claim, right, matter or thing whatsoever, in any way arising out of or relating to the contract, designs, drawings, specification estimates, instructions, orders or these conditions, or otherwise concerning the work, or the execution, or failure to execute the same, whether arising during the progress of the work or after the completion of abandonment and the Superintending Engineer will have to give his decision after giving an opportunity to the party to-the contract. If any party is not satisfied with the decision of the Superintending Engineer, it may make a reference to the Chief Engineer within 30 days from the date of communication of the decision of the Superintending Engineer and the Chief Engineer will give his decision after hearing the parties which shall be final, conclusive and binding on the parties.These clauses are sought to be interpreted as clauses for arbitration. We fail to understand as to how these clauses can be understood to be one referring the matter to arbitration at all. So far as the Superintending Engineer is concerned, he has to decide certain questions which we have adverted to and upon his decision the matter is referred to the Chief Engineer for further decision. These two provisions made in the contract are only to make a fair provision in the contract to settle any of the claims that may arise in the course of execution of contracts and the matter cannot be stretched so as to elevate to the level of an arbitration clause. Neither the Superintending Engineer nor the Chief Engineer can be characterised as discharging the functions of an arbitrator. In that view of the matter, we do not think the contention put forth on behalf of the appellant that the respondent having availed of the arbitration as provided under clause 29 is trying to seek another remedy as provided under Section 7 of the Act is tenable. In the circumstances, the effect of Section 7 upon clause 29 does not arise for consideration at all.
### Response:
0
### Explanation:
The Superintending Engineer under clause 29(2) is empowered to decide all questions relating to the meaning of the specifications, designs, drawings and constructions mentioned in the contract and as to the quality of workmanship or materials used in the work or as to any other question, claim, right, matter or thing whatsoever, in any way arising out of or relating to the contract, designs, drawings, specification estimates, instructions, orders or these conditions, or otherwise concerning the work, or the execution, or failure to execute the same, whether arising during the progress of the work or after the completion of abandonment and the Superintending Engineer will have to give his decision after giving an opportunity to the partycontract. If any party is not satisfied with the decision of the Superintending Engineer, it may make a reference to the Chief Engineer within 30 days from the date of communication of the decision of the Superintending Engineer and the Chief Engineer will give his decision after hearing the parties which shall be final, conclusive and binding on the parties.These clauses are sought to be interpreted as clauses for arbitration. We fail to understand as to how these clauses can be understood to be one referring the matter to arbitration at all. So far as the Superintending Engineer is concerned, he has to decide certain questions which we have adverted to and upon his decision the matter is referred to the Chief Engineer for further decision. These two provisions made in the contract are only to make a fair provision in the contract to settle any of the claims that may arise in the course of execution of contracts and the matter cannot be stretched so as to elevate to the level of an arbitration clause. Neither the Superintending Engineer nor the Chief Engineer can be characterised as discharging the functions of an arbitrator. In that view of the matter, we do not think the contention put forth on behalf of the appellant that the respondent having availed of the arbitration as provided under clause 29 is trying to seek another remedy as provided under Section 7 of the Act is tenable. In the circumstances, the effect of Section 7 upon clause 29 does not arise for consideration at all.
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Oriental Bank Of Commerce Ltd Vs. Shri Harcharan Das Loomba | fully paid-up shares and the company sets up some cause declining to carry out the conversion, the Tribunal is authorised to adjudicate whether the cause set up by the company is a cause reasonably justifying refusal to comply with the requisition.5. The respondent had called upon the Bank under s. 19 (2) to convert his partly paid-up shares into fully paid-up shares., but the Bank declined. to comply with the requisition. The first question falling to be determined is whether the order of the Company judge in the petition filed by the Bank under ss. 55, 56 and 57 of the Indian Companies Act for sanctioning reduction of capital is conclusive and binding upon the respondent so as to deprive him of his right to claim that his partly paid-up shares be converted into fully paid-up shares: The order of the Court under s. 60 of the Companies Act, 1913, sanctioning reduction would normally be binding upon all shareholders. But it must be noticed that s. 3 of Act 70 of 1951 invests, save as expressly provided in that Act, the provisions of the Act and of the rules and orders made thereunder with overriding effect notwithstanding anything contained in any other law for the time being in force or in any decree or order of a court, or in any contract between the parties. By s. 55 of the Indian Companies Act, 1913, a company limited by shares, if so authorised by its articles, may by special resolution sanctioned by the Court reduce its share capital, and the Court is authorised to make an order confirming the reduc- tion on such terms and conditions as it thinks fit. The Company judge did make an order sanctioning reduction of the capital on conditions relating to conversion of the share holding of displaced persons, but the order could not deprive a displaced person of the special statutory right granted under s. 19 of the Displaced Persons (Debts Adjustment) Act 70 of 1951. The Act has conferred a special right upon displaced persons to claim that their partly paid share holding be converted into fully paid shares : and this right may cease to be exercisable only if the Tribunal is satisfied that there is good cause for refusing conversion. It is not the refusal by the company to comply with the requisition, but the ad. judication by the Tribunal -which deprives the displaced person of his right to have his shares converted. Before the Company judge validity of the resolution for reduction of capital was challenged on the ground that it was passed-with a view to deprive the displaced persons of their right under s. 19, and it may be assumed that the Company judge having regard to the reasons recorded by him rejected that contention. But the order does not operate as res judicata, for the jurisdiction to decide whether there is good ground for refusing to grant the requisition for conversion by a displaced person is vested exclusively in the Tribunal and in no other body. It was open to any displaced person to avail himself of the option given by the order of the Company judge : if he elected to avail himself of the option he would be bound by his election. But a displaced person was not obliged to avail himself of the option, and if he did not, his right to call upon the Bank to grant him conversion was not affected by the order of the company judge. The order of the Company judge did not and could not amount to a decision binding all displaced shareholders. If a displaced person does not desire to avail himself of the option he will be entitled thereafter to apply under cl. (4) of s. 19. The order passed by the Company judge remains valid and binding but subject to such orders as the Tribunal may make in respect of any individual shareholder who makes an application under sub-s. (4) of s. 19. That is clear from the terms of cl. (5) which ensures the validity of the action taken by the Company or its board of directors in pursuance of the provisions of the Companies Act or of the memorandum or articles of association relating to the company, save as otherwise provided in s. 19. We agree therefore with the view of the Courts below that the Tribunal did not lose its jurisdiction to adjudicate upon the petition filed by the respondent, merely because the Company judge had given him and others similarly placed, an option which they could but were no obliged to elect.The second question which falls to be determined is whether the case shown by the Bank for refusing to convert the holding of the respondent into fully paid-up shares was good or sufficient. The Tribunal held that the resolution for reduction of capital was passed mala fide and with a view to deprive the displaced persons of their right to claim conversion of their partly paid-up shares. The Tribunal pointed out that even though the financial condition of the Bank was precarious for many years, the scheme of reduction of -capital was only evolved after the Parliament enacted Act 70 of 1951 as an expedient to nullify the statutory right of displaced shareholders. The High Court also held that all the assets of the Bank had not disappeared and in any event absence of assets was by its-elf not a sufficient ground for depriving a displaced person of his statutory right. The finding of the Tribunal which was confirmed by the High Court establishes that the cause set up by the Bank was not genuine; the resolution for reduction of capital was a device to which resort was had for nullifying the statutory protection granted to displaced persons. That conclusion is supported by evidence, and ought according to the practice of this Court, be regarded as binding. There was no other ground set up in support of the refusal by the Bank.6. | 0[ds]The Tribunal held that the resolution for reduction of capital was passed mala fide and with a view to deprive the displaced persons of their right to claim conversion of their partly paid-up shares. The Tribunal pointed out that even though the financial condition of the Bank was precarious for many years, the scheme of reduction of -capital was only evolved after the Parliament enacted Act 70 of 1951 as an expedient to nullify the statutory right of displaced shareholders. The High Court also held that all the assets of the Bank had not disappeared and in any event absence of assets was by its-elf not a sufficient ground for depriving a displaced person of his statutory right. The finding of the Tribunal which was confirmed by the High Court establishes that the cause set up by the Bank was not genuine; the resolution for reduction of capital was a device to which resort was had for nullifying the statutory protection granted to displaced persons. That conclusion is supported by evidence, and ought according to the practice of this Court, be regarded as binding. There was no other ground set up in support of the refusal by theCompany judge did make an order sanctioning reduction of the capital on conditions relating to conversion of the share holding of displaced persons, but the order could not deprive a displaced person of the special statutory right granted under s. 19 of the Displaced Persons (Debts Adjustment) Act 70 of 1951. The Act has conferred a special right upon displaced persons to claim that their partly paid share holding be converted into fully paid shares : and this right may cease to be exercisable only if the Tribunal is satisfied that there is good cause for refusing conversion. It is not the refusal by the company to comply with the requisition, but the ad. judication by the Tribunal -which deprives the displaced person of his right to have his shares converted. Before the Company judge validity of the resolution for reduction of capital was challenged on the ground that it was passed-with a view to deprive the displaced persons of their right under s. 19, and it may be assumed that the Company judge having regard to the reasons recorded by him rejected that contention. But the order does not operate as res judicata, for the jurisdiction to decide whether there is good ground for refusing to grant the requisition for conversion by a displaced person is vested exclusively in the Tribunal and in no other body. It was open to any displaced person to avail himself of the option given by the order of the Company judge : if he elected to avail himself of the option he would be bound by his election. But a displaced person was not obliged to avail himself of the option, and if he did not, his right to call upon the Bank to grant him conversion was not affected by the order of the company judge. The order of the Company judge did not and could not amount to a decision binding all displaced shareholders. If a displaced person does not desire to avail himself of the option he will be entitled thereafter to apply under cl. (4) of s. 19. The order passed by the Company judge remains valid and binding but subject to such orders as the Tribunal may make in respect of any individual shareholder who makes an application under sub-s. (4) of s. 19. That is clear from the terms of cl. (5) which ensures the validity of the action taken by the Company or its board of directors in pursuance of the provisions of the Companies Act or of the memorandum or articles of association relating to the company, save as otherwise provided in s. 19. We agree therefore with the view of the Courts below that the Tribunal did not lose its jurisdiction to adjudicate upon the petition filed by the respondent, merely because the Company judge had given him and others similarly placed, an option which they could but were no obliged to elect. | 0 | 2,913 | 731 | ### 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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fully paid-up shares and the company sets up some cause declining to carry out the conversion, the Tribunal is authorised to adjudicate whether the cause set up by the company is a cause reasonably justifying refusal to comply with the requisition.5. The respondent had called upon the Bank under s. 19 (2) to convert his partly paid-up shares into fully paid-up shares., but the Bank declined. to comply with the requisition. The first question falling to be determined is whether the order of the Company judge in the petition filed by the Bank under ss. 55, 56 and 57 of the Indian Companies Act for sanctioning reduction of capital is conclusive and binding upon the respondent so as to deprive him of his right to claim that his partly paid-up shares be converted into fully paid-up shares: The order of the Court under s. 60 of the Companies Act, 1913, sanctioning reduction would normally be binding upon all shareholders. But it must be noticed that s. 3 of Act 70 of 1951 invests, save as expressly provided in that Act, the provisions of the Act and of the rules and orders made thereunder with overriding effect notwithstanding anything contained in any other law for the time being in force or in any decree or order of a court, or in any contract between the parties. By s. 55 of the Indian Companies Act, 1913, a company limited by shares, if so authorised by its articles, may by special resolution sanctioned by the Court reduce its share capital, and the Court is authorised to make an order confirming the reduc- tion on such terms and conditions as it thinks fit. The Company judge did make an order sanctioning reduction of the capital on conditions relating to conversion of the share holding of displaced persons, but the order could not deprive a displaced person of the special statutory right granted under s. 19 of the Displaced Persons (Debts Adjustment) Act 70 of 1951. The Act has conferred a special right upon displaced persons to claim that their partly paid share holding be converted into fully paid shares : and this right may cease to be exercisable only if the Tribunal is satisfied that there is good cause for refusing conversion. It is not the refusal by the company to comply with the requisition, but the ad. judication by the Tribunal -which deprives the displaced person of his right to have his shares converted. Before the Company judge validity of the resolution for reduction of capital was challenged on the ground that it was passed-with a view to deprive the displaced persons of their right under s. 19, and it may be assumed that the Company judge having regard to the reasons recorded by him rejected that contention. But the order does not operate as res judicata, for the jurisdiction to decide whether there is good ground for refusing to grant the requisition for conversion by a displaced person is vested exclusively in the Tribunal and in no other body. It was open to any displaced person to avail himself of the option given by the order of the Company judge : if he elected to avail himself of the option he would be bound by his election. But a displaced person was not obliged to avail himself of the option, and if he did not, his right to call upon the Bank to grant him conversion was not affected by the order of the company judge. The order of the Company judge did not and could not amount to a decision binding all displaced shareholders. If a displaced person does not desire to avail himself of the option he will be entitled thereafter to apply under cl. (4) of s. 19. The order passed by the Company judge remains valid and binding but subject to such orders as the Tribunal may make in respect of any individual shareholder who makes an application under sub-s. (4) of s. 19. That is clear from the terms of cl. (5) which ensures the validity of the action taken by the Company or its board of directors in pursuance of the provisions of the Companies Act or of the memorandum or articles of association relating to the company, save as otherwise provided in s. 19. We agree therefore with the view of the Courts below that the Tribunal did not lose its jurisdiction to adjudicate upon the petition filed by the respondent, merely because the Company judge had given him and others similarly placed, an option which they could but were no obliged to elect.The second question which falls to be determined is whether the case shown by the Bank for refusing to convert the holding of the respondent into fully paid-up shares was good or sufficient. The Tribunal held that the resolution for reduction of capital was passed mala fide and with a view to deprive the displaced persons of their right to claim conversion of their partly paid-up shares. The Tribunal pointed out that even though the financial condition of the Bank was precarious for many years, the scheme of reduction of -capital was only evolved after the Parliament enacted Act 70 of 1951 as an expedient to nullify the statutory right of displaced shareholders. The High Court also held that all the assets of the Bank had not disappeared and in any event absence of assets was by its-elf not a sufficient ground for depriving a displaced person of his statutory right. The finding of the Tribunal which was confirmed by the High Court establishes that the cause set up by the Bank was not genuine; the resolution for reduction of capital was a device to which resort was had for nullifying the statutory protection granted to displaced persons. That conclusion is supported by evidence, and ought according to the practice of this Court, be regarded as binding. There was no other ground set up in support of the refusal by the Bank.6.
### Response:
0
### Explanation:
The Tribunal held that the resolution for reduction of capital was passed mala fide and with a view to deprive the displaced persons of their right to claim conversion of their partly paid-up shares. The Tribunal pointed out that even though the financial condition of the Bank was precarious for many years, the scheme of reduction of -capital was only evolved after the Parliament enacted Act 70 of 1951 as an expedient to nullify the statutory right of displaced shareholders. The High Court also held that all the assets of the Bank had not disappeared and in any event absence of assets was by its-elf not a sufficient ground for depriving a displaced person of his statutory right. The finding of the Tribunal which was confirmed by the High Court establishes that the cause set up by the Bank was not genuine; the resolution for reduction of capital was a device to which resort was had for nullifying the statutory protection granted to displaced persons. That conclusion is supported by evidence, and ought according to the practice of this Court, be regarded as binding. There was no other ground set up in support of the refusal by theCompany judge did make an order sanctioning reduction of the capital on conditions relating to conversion of the share holding of displaced persons, but the order could not deprive a displaced person of the special statutory right granted under s. 19 of the Displaced Persons (Debts Adjustment) Act 70 of 1951. The Act has conferred a special right upon displaced persons to claim that their partly paid share holding be converted into fully paid shares : and this right may cease to be exercisable only if the Tribunal is satisfied that there is good cause for refusing conversion. It is not the refusal by the company to comply with the requisition, but the ad. judication by the Tribunal -which deprives the displaced person of his right to have his shares converted. Before the Company judge validity of the resolution for reduction of capital was challenged on the ground that it was passed-with a view to deprive the displaced persons of their right under s. 19, and it may be assumed that the Company judge having regard to the reasons recorded by him rejected that contention. But the order does not operate as res judicata, for the jurisdiction to decide whether there is good ground for refusing to grant the requisition for conversion by a displaced person is vested exclusively in the Tribunal and in no other body. It was open to any displaced person to avail himself of the option given by the order of the Company judge : if he elected to avail himself of the option he would be bound by his election. But a displaced person was not obliged to avail himself of the option, and if he did not, his right to call upon the Bank to grant him conversion was not affected by the order of the company judge. The order of the Company judge did not and could not amount to a decision binding all displaced shareholders. If a displaced person does not desire to avail himself of the option he will be entitled thereafter to apply under cl. (4) of s. 19. The order passed by the Company judge remains valid and binding but subject to such orders as the Tribunal may make in respect of any individual shareholder who makes an application under sub-s. (4) of s. 19. That is clear from the terms of cl. (5) which ensures the validity of the action taken by the Company or its board of directors in pursuance of the provisions of the Companies Act or of the memorandum or articles of association relating to the company, save as otherwise provided in s. 19. We agree therefore with the view of the Courts below that the Tribunal did not lose its jurisdiction to adjudicate upon the petition filed by the respondent, merely because the Company judge had given him and others similarly placed, an option which they could but were no obliged to elect.
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SURESHCHANDRA BAGMAL DOSHI Vs. THE NEW INDIA ASSURANCE CO. LTD | the loss of dependency or the future economic loss at Rs.8,000 per month and thereafter a multiplier of 16 was applied. The Tribunal, thus, awarded a sum of Rs.15,36,000 towards loss of dependency benefit; Rs.15,000 towards conventional amount under the head loss of estate; Rs.15,000 towards loss of love and affection and Rs.5,000 towards funeral expenses totaling to Rs.15,71,000 in terms of an award dated 29.3.2007. The claimants were also held entitled to interest @ 12 per cent per annum on the award amount from the date of application till realization. 5. Both the sides were aggrieved by the assessment of this claim and filed appeals before the High Court, which modified the award of the Tribunal vide impugned judgment dated 9.2.2015, which is subject matter of the present appeal. 6. The High Court declined to accept the future income rise as 100 per cent and took the same as 50 per cent in view of the judgment of this Court in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. 1 The High Court, considering that the claimants were the parents of the deceased, deducted 50 per cent towards personal expenses instead of 1/3 rd of the amount, as per the Tribunal. In fact, a reading of the order shows that these were the only two pleas advanced on behalf of the insurance company on which the appeal of the insurance company succeeded. 7. The High Court, however, fixed the multiplier at 18 instead of 16 as fixed by the Tribunal, as the deceased was aged about 25 years, and that would have been the appropriate multiplier as per Sarla Verma 2 . The High Court also examined the two other pleased made on behalf of the claimants, i.e., that the award of Rs.15,000 for loss of estate and Rs.15,000 for loss of love and affection was inadequate. 8. In view of what the High Court held as aforesaid, the amount was computed at Rs.10,72,360 with a sum of Rs.50,000 being awarded under the head of loss of estate as well as loss of love and affection instead of Rs.30,000 as awarded by the Tribunal and Rs.5,000 towards funeral expenses. The interest awarded was also upheld. 1 9. The claimants alone are the appellants before us. 10. On having heard the learned counsel for the parties and having examined the record, we may note that the parties are ad idem on the assessment of the income of the deceased at Rs.6,273 per month. The question, thus, is whether the Tribunal was right in increasing the amount for future rise in income by 100 per cent, or the High Court was within its right to reduce the said amount to 50 per cent. 11. We have the benefit of the Constitution Bench judgment of this Court in National Insurance Company Limited v. Pranay Sethi & Ors. 3 . While examining the observations in Sarla Verma 4 , the Constitution Bench gave its imprimatur to the addition of 50 per cent to actual salary of the deceased towards future prospects where the deceased had a permanent job and was below the age of 40 years, as in the present case. However, learned counsel for the appellant has brought to our notice a recent order passed by this Court in SLP (C) No.22134/2016 and other connected matters dated 22.11.2017 wherein while taking note of the views expressed by National Insurance Company Limited 5 , it has been observed that the percentage for calculating future rise in income is no bar to future prospects being taken at a higher level where the assessment is based on actual evidence led to the satisfaction of the Tribunal/the Court that the future prospects were higher than the standard percentage. Learned counsel, thus, submitted in the context of the evidence led in the present case that the two certificates dated 16.10.1998 and 8.7.2005 were proved in terms whereof the deceaseds future prospects would have entitled her to a gross salary in the range of Rs.14,000 to Rs. 17,000 per month. No doubt the second certificate is dated 8.7.2005, after a lapse of 7 years from the first certificate, but then that would be a more realistic estimate of what a person holding that post would be earning at that stage of time. There is no rebuttal evidence led by the insurance company and we see no reason to doubt these certificates. Thus, the assessment of the Tribunal is based on the evidence led in the present case. As noticed above, the standardized percentage is capable of being varied if the evidence is so led. 12. We are, thus, of the view that looking into the conspectus of the aforesaid facts and the legal position, the Tribunal was justified in giving a 100 per cent increase and taking the future prospects at Rs.12,000 per month. 13. The second aspect relates to the percentage of deduction. It really could not be seriously disputed before us that considering that the deceased is survived by the two parents, 50 per cent amount be deducted as personal and living expenses of the deceased when the deceased is unmarried or widowed, as in the present case in view of the judgment in National Insurance Company Limited 6 , which has affirmed the position in Sarla Verma 7 . Thus, the High Court was justified in increasing the percentage of personal expenses to the extent of 50 per cent and not 1/3 rd as held by the Tribunal. 14. Now coming to the last aspect, i.e., the conventional heads, in National Insurance Company Limited 8 , it has been standardized at Rs.15,000 for loss of estate; Rs.40,000 towards loss of consortium (in the present case loss of love and affection) and Rs.15,000 towards funeral expenses. The total amount, thus, would be Rs.70,000, whichas per the said judgment is capable of being enhanced @ 10 per cent in the span of every three years. However, we are still within the window of three years. | 1[ds]No doubt the second certificate is dated 8.7.2005, after a lapse of 7 years from the first certificate, but then that would be a more realistic estimate of what a person holding that post would be earning at that stage of time. There is no rebuttal evidence led by the insurance company and we see no reason to doubt these certificates. Thus, the assessment of the Tribunal is based on the evidence led in the present case. As noticed above, the standardized percentage is capable of being varied if the evidence is so led12. We are, thus, of the view that looking into the conspectus of theaforesaid facts and the legal position, the Tribunal was justified in giving a 100 per cent increase and taking the future prospects at Rs.12,000 per month13. The second aspect relates to the percentage of deduction. It really could not be seriously disputed before us that considering that the deceased is survived by the two parents, 50 per cent amount be deducted as personal and living expenses of the deceased when the deceased is unmarried or widowed, as in the present case in view of the judgment in National Insurance Company Limited 6 , which has affirmed the position in Sarla Verma 7 . Thus, the High Court was justified in increasing the percentage of personal expenses to the extent of 50 per cent and not 1/3 rd as held by the Tribunal14. Now coming to the last aspect, i.e., the conventional heads, in National Insurance Company Limited 8 , it has been standardized at Rs.15,000 for loss of estate; Rs.40,000 towards loss of consortium (in the present case loss of love and affection) and Rs.15,000 towards funeral expenses. The total amount, thus, would be Rs.70,000, whichas per the said judgment is capable of being enhanced @ 10 per cent in the span of every three years. However, we are still within the window of three years. | 1 | 1,464 | 356 | ### 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 loss of dependency or the future economic loss at Rs.8,000 per month and thereafter a multiplier of 16 was applied. The Tribunal, thus, awarded a sum of Rs.15,36,000 towards loss of dependency benefit; Rs.15,000 towards conventional amount under the head loss of estate; Rs.15,000 towards loss of love and affection and Rs.5,000 towards funeral expenses totaling to Rs.15,71,000 in terms of an award dated 29.3.2007. The claimants were also held entitled to interest @ 12 per cent per annum on the award amount from the date of application till realization. 5. Both the sides were aggrieved by the assessment of this claim and filed appeals before the High Court, which modified the award of the Tribunal vide impugned judgment dated 9.2.2015, which is subject matter of the present appeal. 6. The High Court declined to accept the future income rise as 100 per cent and took the same as 50 per cent in view of the judgment of this Court in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. 1 The High Court, considering that the claimants were the parents of the deceased, deducted 50 per cent towards personal expenses instead of 1/3 rd of the amount, as per the Tribunal. In fact, a reading of the order shows that these were the only two pleas advanced on behalf of the insurance company on which the appeal of the insurance company succeeded. 7. The High Court, however, fixed the multiplier at 18 instead of 16 as fixed by the Tribunal, as the deceased was aged about 25 years, and that would have been the appropriate multiplier as per Sarla Verma 2 . The High Court also examined the two other pleased made on behalf of the claimants, i.e., that the award of Rs.15,000 for loss of estate and Rs.15,000 for loss of love and affection was inadequate. 8. In view of what the High Court held as aforesaid, the amount was computed at Rs.10,72,360 with a sum of Rs.50,000 being awarded under the head of loss of estate as well as loss of love and affection instead of Rs.30,000 as awarded by the Tribunal and Rs.5,000 towards funeral expenses. The interest awarded was also upheld. 1 9. The claimants alone are the appellants before us. 10. On having heard the learned counsel for the parties and having examined the record, we may note that the parties are ad idem on the assessment of the income of the deceased at Rs.6,273 per month. The question, thus, is whether the Tribunal was right in increasing the amount for future rise in income by 100 per cent, or the High Court was within its right to reduce the said amount to 50 per cent. 11. We have the benefit of the Constitution Bench judgment of this Court in National Insurance Company Limited v. Pranay Sethi & Ors. 3 . While examining the observations in Sarla Verma 4 , the Constitution Bench gave its imprimatur to the addition of 50 per cent to actual salary of the deceased towards future prospects where the deceased had a permanent job and was below the age of 40 years, as in the present case. However, learned counsel for the appellant has brought to our notice a recent order passed by this Court in SLP (C) No.22134/2016 and other connected matters dated 22.11.2017 wherein while taking note of the views expressed by National Insurance Company Limited 5 , it has been observed that the percentage for calculating future rise in income is no bar to future prospects being taken at a higher level where the assessment is based on actual evidence led to the satisfaction of the Tribunal/the Court that the future prospects were higher than the standard percentage. Learned counsel, thus, submitted in the context of the evidence led in the present case that the two certificates dated 16.10.1998 and 8.7.2005 were proved in terms whereof the deceaseds future prospects would have entitled her to a gross salary in the range of Rs.14,000 to Rs. 17,000 per month. No doubt the second certificate is dated 8.7.2005, after a lapse of 7 years from the first certificate, but then that would be a more realistic estimate of what a person holding that post would be earning at that stage of time. There is no rebuttal evidence led by the insurance company and we see no reason to doubt these certificates. Thus, the assessment of the Tribunal is based on the evidence led in the present case. As noticed above, the standardized percentage is capable of being varied if the evidence is so led. 12. We are, thus, of the view that looking into the conspectus of the aforesaid facts and the legal position, the Tribunal was justified in giving a 100 per cent increase and taking the future prospects at Rs.12,000 per month. 13. The second aspect relates to the percentage of deduction. It really could not be seriously disputed before us that considering that the deceased is survived by the two parents, 50 per cent amount be deducted as personal and living expenses of the deceased when the deceased is unmarried or widowed, as in the present case in view of the judgment in National Insurance Company Limited 6 , which has affirmed the position in Sarla Verma 7 . Thus, the High Court was justified in increasing the percentage of personal expenses to the extent of 50 per cent and not 1/3 rd as held by the Tribunal. 14. Now coming to the last aspect, i.e., the conventional heads, in National Insurance Company Limited 8 , it has been standardized at Rs.15,000 for loss of estate; Rs.40,000 towards loss of consortium (in the present case loss of love and affection) and Rs.15,000 towards funeral expenses. The total amount, thus, would be Rs.70,000, whichas per the said judgment is capable of being enhanced @ 10 per cent in the span of every three years. However, we are still within the window of three years.
### Response:
1
### Explanation:
No doubt the second certificate is dated 8.7.2005, after a lapse of 7 years from the first certificate, but then that would be a more realistic estimate of what a person holding that post would be earning at that stage of time. There is no rebuttal evidence led by the insurance company and we see no reason to doubt these certificates. Thus, the assessment of the Tribunal is based on the evidence led in the present case. As noticed above, the standardized percentage is capable of being varied if the evidence is so led12. We are, thus, of the view that looking into the conspectus of theaforesaid facts and the legal position, the Tribunal was justified in giving a 100 per cent increase and taking the future prospects at Rs.12,000 per month13. The second aspect relates to the percentage of deduction. It really could not be seriously disputed before us that considering that the deceased is survived by the two parents, 50 per cent amount be deducted as personal and living expenses of the deceased when the deceased is unmarried or widowed, as in the present case in view of the judgment in National Insurance Company Limited 6 , which has affirmed the position in Sarla Verma 7 . Thus, the High Court was justified in increasing the percentage of personal expenses to the extent of 50 per cent and not 1/3 rd as held by the Tribunal14. Now coming to the last aspect, i.e., the conventional heads, in National Insurance Company Limited 8 , it has been standardized at Rs.15,000 for loss of estate; Rs.40,000 towards loss of consortium (in the present case loss of love and affection) and Rs.15,000 towards funeral expenses. The total amount, thus, would be Rs.70,000, whichas per the said judgment is capable of being enhanced @ 10 per cent in the span of every three years. However, we are still within the window of three years.
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JOSE PAULO COUTINHO Vs. MARIA LUIZA VALENTINA PEREIRA | then the special law shall prevail. This principle will apply with greater force to special law which is also additionally a local law. This judicial principle is based on the latin maxim generalia specialibus non derogant, i.e., general law yields to special law should they operate in the same field on the same subject. Reference may be made to the decision of this Court in R.S. Raghunath vs. State of Karnataka & Ors. (1992) 1 SCC 335 , Commercial Tax Officer, Rajasthan vs. Binani Cements Ltd. & Ors. (2014) 8 SCC 319 and Atma Ram Properties Pvt. Ltd. vs. The Oriental Insurance Co. Ltd. (2018) 2 SCC 27. 30. As far as Goa is concerned, there is a specific judgment in this regard i.e. Justiniano Augusto De Piedade Barreto & Ors. vs. Antonio Vicente Da Fonseca & Ors., (1979) 3 SCC 47 though relating to the interpretation of Section 29 of the Limitation Act, 1963, which deals with local and special laws. Dealing with the issue of the Portuguese Civil Code, the Court held that it could not escape from reaching the conclusion that the Portuguese Civil Code is a local law within the ambit of Section 29(2) of the Limitation Act, 1963. A special law is a law relating to a particular subject while a local law is a law confined to a particular area or territory. In our considered view, the Portuguese Civil Code, in matters of succession, is both a special law and a local law. It is special and local because it deals with laws of succession for the domiciles of Goa only. In Para 14 of this judgment, the Court held as follows: 14. We, therefore, arrive at the conclusion that the body of provisions in the Portuguese Civil Code dealing with the subject of Limitation of suits etc. and in force in the Union Territory of Goa, Daman and Diu only is local law within the meaning of Section 29(2) of the Limitation Act, 1963. As stated earlier these provisions have to be read into the Limitation Act, 1963, as if the Schedule to the Limitation Act is amended mutatis mutandis. No question of repugnancy arises. We agree with the Judicial Commissioner that the provisions of the Portuguese Civil Code relating to Limitation continue to be in force in the Union Territory of Goa, Daman and Diu. 31. In view of the aforesaid, we are clearly of the view that the Portuguese Civil Code being a special Act, applicable only to the domiciles of Goa, will be applicable to the Goan domiciles in respect to all the properties wherever they be situated in India whether within Goa or outside Goa and Section 5 of the Indian Succession Act or the laws of succession would not be applicable to such Goan domiciles. III. What is the effect of the grant of probate by the Bombay High Court in respect of the Will executed by JMP? 32. We shall now deal with the issue what is the effect of the grant of probate of the Will of late JMP by the High Court of Bombay? At the outset, we may say that the order granting probate has not been produced by any side though it is admitted by all sides that probate was granted and the appellants herein had notice of the probate case. Assuming that probate had been granted, what is the effect of the grant of probate on the laws of inheritance? Grant of probate has nothing to do with inheritance. The jurisdiction of a probate court is limited to decide whether the Will is genuine or not. The Will may be genuine but the grant of probate does not mean that the Will is valid even if it violates the laws of inheritance. To give an example, supposing a Hindu bequeathes his ancestral property by a Will and probate of the Will is granted, such grant of probate cannot adversely affect the rights of those members of the coparcenary who had a right in the property since birth. Similar is the case in Goa. The legitime is the right of the heirs by birth. When both the spouses are alive, they own half of the property. Mere grant of probate will not mean that the husband can Will away more than half of the property even if that be in his name. 33. This Court in Krishna Kumar Birla vs. Rajendra Singh Lodha (2008) 4 SCC 300 held as under: 57. The 1925 Act in this case has nothing to do with the law of inheritance or succession which is otherwise governed by statutory laws or the custom, as the case may be. It makes detailed provisions as to how and in what manner an application for grant of probate is to be filed, considered and granted or refused. Rights and obligations of the parties as also the executors and administrators appointed by the court are laid down therein. Removal of the existing executors and administrators and appointment of subsequent executors are within the exclusive domain of the court. The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the (sic probate) proceedings. Construction of a will relating to the right, title and interest of any other person is beyond the domain of the Probate Court. In view of the clear-cut exposition of law in the aforesaid case, we hold that grant of probate by the Bombay High Court did not in any manner affect the rights of inheritance of all the legal heirs of the deceased. 34. In view of the above discussion, we answer the question framed in Paragraph 1, holding that it will be the Portuguese Civil Code, 1867 as applicable in the State of Goa, which shall govern the rights of succession and inheritance even in respect of properties of a Goan domicile situated outside Goa, anywhere in India. | 1[ds]I. Whether the Portuguese Civil Code can be said to be a foreign law and the principles of private international law are applicable?18. We are clearly of the view that these laws would not have been applicable unless recognised by the Indian Government and the Portuguese Civil Code continued to apply in Goa only because of an Act of the Parliament of India. Therefore, the Portuguese law which may have had foreign origin became a part of the Indian laws, and, in sum and substance, is an Indian law. It is no longer a foreign law. Goa is a territory of India; all domiciles of Goa are citizens of India; the Portuguese Civil Code is applicable only on account of the Ordinance and the Act referred to above. Therefore, it is crystal clear that the Code is an Indian law and no principles of private international law are applicable to this case. We answer question number one accordingly19. Once we come to this conclusion, the answer to the second question becomes very simpleII. Whether the property of a Goan domicile outside the territory of Goa would be governed by the Code or by Indian Succession Act or by personal laws, as applicable in the rest of the country e.g. Hindu Succession Act, 1956, Muslim Personal Law (Shariat) Application Act, 1937, etc.?21. However, Goa is a shining example of an Indian State which has a uniform civil code applicable to all, regardless of religion except while protecting certain limited rights. It would also not be out of place to mention that with effect from 22.12.2016 certain portions of the Portuguese Civil Code have been repealed and replaced by the Goa Succession, Special Notaries and Inventory Proceedings Act, 2012 which, by and large, is in line with the Portuguese Civil Code. The salient features with regard to family properties are that a married couple jointly holds the ownership of all the assets owned before marriage or acquired after marriage by each spouse. Therefore, in case of divorce, each spouse is entitled to half share of the assets. The law, however, permits pre-nuptial agreements which may have a different system of division of assets. Another important aspect, as pointed out earlier, is that at least half of the property has to pass to the legal heirs as legitime. This, in some ways, is akin to the concept of coparcenary in Hindu law. However, as far as Goa is concerned, this legitime will also apply to the self-acquired properties. Muslim men whose marriages are registered in Goa cannot practice polygamy. Further, even for followers of Islam there is no provision for verbal divorceAs pointed out earlier, this is not a conflict of international law. The Indian Parliament has made the earlier Portuguese Civil Code applicable in the State of GoaIt is in this light that we shall now read Article 24 on which great reliance has been placed by the learned Single Judge in the impugned judgmentIn our view, this article has no applicability to the facts of the present case. When a law is adopted or applied in a new situation, it has to be read in that context. We have to read Article 24 in context of the annexation of the territories of Goa by conquest and their becoming an inherent part of India. There are no Goan citizens; there can be domiciles of Goa but all are citizens of India. As Indian citizens, under Article 19 of the Constitution, they are free to move to any part of the country, reside there and buy property subject to the local laws and limitations. Therefore, a domicile of Goa, who starts living in Bombay or in any other part of India, cannot be said to be Portuguese by any stretch of imagination and he cannot be said to be living in a foreign country. Indian citizens living in India cannot, by any stretch of imagination, be said to be living in a foreign country. This person is only a Goan domicile living outside Goa in India, which is his country. Therefore, Article 24, in our opinion, has no applicabilityA bare reading of Article 1737 clearly indicates that the inheritance of a deceased comprises of all the assets, rights and liabilities of the deceased. The only exclusion, is totally personal assets or those excluded by the disposition of the said deceased or by law24. Article 1766 provides that a married person shall not on the penalty of nullity dispose of certain and specific properties of the couple except if the said properties have been allotted to the said personThe basis of this article is that both spouses are equal owners of the entire property of the couple – acquired before or after marriage. Therefore, the disposition of some part of the property without the consent of the other spouse can be termed a nullity. We are referring to this Article only to highlight the fact that in case the Civil Code is to apply this would also be a factor to be taken into consideration because can it be said that this article will only apply to the properties within the territory of Goa and not to properties in other parts of the country i.e. India?A domicile under his personal law is obliged to reserve a legitime which can be disposed of only in accordance with the laws of inheritance. As pointed out earlier, in most of the cases, the legitime would be half. Again, the question would arise that is this legitime to be calculated by taking into consideration only the immovable properties in Goa or by taking all the properties of the deceased into consideration? Once we have come to the conclusion that the Civil Code is an Indian law and the domiciles of Goa, for all intent and purposes, are Indian citizens, would it be prudent to hold that the Civil Code, in matters of succession, would apply only in respect to properties situated within the territories of Goa? We do not think so26. Succession is governed normally by the personal laws and where there is a uniform civil code, as in Goa, by the Civil Code. Once Article 24 is not to be taken into consideration then it is but obvious that all the properties whether within Goa or outside Goa, must be governed by the Civil Code of Goa. If we were to hold otherwise, the consequences could be disastrous, to say the least. There would be no certainty of succession. It would be virtually impossible to determine the legitime which is an inherent part of the law of succession. The rights of the spouses to have 50% of the property could easily be defeated by buying properties outside the State of Goa. In the case of a Hindu Goan domicile it would lead to further complications because if we were to accept the judgment of the learned Single Judge and the arguments of the respondents, for the properties in Goa, the Civil Code would apply but for the properties outside the territory of Goa, the Hindu Succession Act will apply. Similarly, for Muslims within the State of Goa, Civil Code would apply and outside Goa, the Muslim Personal Law (Shariat) Application Act, 1937 would apply. This would lead to many uncalled for disputes and total uncertainty with regard to succession27. There must be unity in succession. The Portuguese law is based on the Roman law concept of hereditas i.e. inheritance to the entire legal position of a deceased manThough we have held that this is Indian law, since it is a law of Portuguese origin, we may have to take guidance from the way in which the law has been applied to come to the conclusion to see what is the intention of the law. Therefore, all the properties of the person whose inheritance is in question have to be calculated and considered as one big conglomerate unit and then the rules of succession will apply28. There is a conflict between the Indian Succession Act, the Hindu Succession Act, the Muslim Personal Law (Shariat) Application Act, 1937, etc. and the Portuguese Civil Code with regard to the laws of inheritance but this conflict has to be resolved. In our view, the Parliament of India, after conquest of Goa, by adopting the Portuguese Civil Code accepted that the Goan domiciles were to be governed by that law in matters covered under the Code and specifically included in the laws which were made applicable. The Indian Parliament did not make applicable all Portuguese laws but the laws which were applied would apply with full force. The Goa, Daman and Diu (Administration) Act, 1962 is a special law dealing with the domiciles of Goa alone. This special law making the Portuguese Civil Code applicable is an exception carved out of the general laws of succession namely Indian Succession Act, Hindu Succession Act, 1956, Muslim Personal Law (Shariat) Application Act, 1937 and other laws29. It is a well settled principle of statutory interpretation that when there is a conflict between the general law and the special law then the special law shall prevail. This principle will apply with greater force to special law which is also additionally a local law. This judicial principle is based on the latin maxim generalia specialibus non derogant, i.e., general law yields to special law should they operate in the same field on the same subject30. As far as Goa is concerned, there is a specific judgment in this regard i.e. Justiniano Augusto De Piedade Barreto & Ors. vs. Antonio Vicente Da Fonseca & Ors., (1979) 3 SCC 47 though relating to the interpretation of Section 29 of the Limitation Act, 1963, which deals with local and special laws. Dealing with the issue of the Portuguese Civil Code, the Court held that it could not escape from reaching the conclusion that the Portuguese Civil Code is a local law within the ambit of Section 29(2) of the Limitation Act, 1963. A special law is a law relating to a particular subject while a local law is a law confined to a particular area or territory. In our considered view, the Portuguese Civil Code, in matters of succession, is both a special law and a local law. It is special and local because it deals with laws of succession for the domiciles of Goa only. In Para 14 of this judgment, the Court held as follows:14. We, therefore, arrive at the conclusion that the body of provisions in the Portuguese Civil Code dealing with the subject of Limitation of suits etc. and in force in the Union Territory of Goa, Daman and Diu only is local law within the meaning of Section 29(2) of the Limitation Act, 1963. As stated earlier these provisions have to be read into the Limitation Act, 1963, as if the Schedule to the Limitation Act is amended mutatis mutandis. No question of repugnancy arises. We agree with the Judicial Commissioner that the provisions of the Portuguese Civil Code relating to Limitation continue to be in force in the Union Territory of Goa, Daman and Diu31. In view of the aforesaid, we are clearly of the view that the Portuguese Civil Code being a special Act, applicable only to the domiciles of Goa, will be applicable to the Goan domiciles in respect to all the properties wherever they be situated in India whether within Goa or outside Goa and Section 5 of the Indian Succession Act or the laws of succession would not be applicable to such Goan domicilesIII. What is the effect of the grant of probate by the Bombay High Court in respect of the Will executed by JMP?32. We shall now deal with the issue what is the effect of the grant of probate of the Will of late JMP by the High Court of Bombay? At the outset, we may say that the order granting probate has not been produced by any side though it is admitted by all sides that probate was granted and the appellants herein had notice of the probate case. Assuming that probate had been granted, what is the effect of the grant of probate on the laws of inheritance? Grant of probate has nothing to do with inheritance. The jurisdiction of a probate court is limited to decide whether the Will is genuine or not. The Will may be genuine but the grant of probate does not mean that the Will is valid even if it violates the laws of inheritance. To give an example, supposing a Hindu bequeathes his ancestral property by a Will and probate of the Will is granted, such grant of probate cannot adversely affect the rights of those members of the coparcenary who had a right in the property since birth. Similar is the case in Goa. The legitime is the right of the heirs by birth. When both the spouses are alive, they own half of the property. Mere grant of probate will not mean that the husband can Will away more than half of the property even if that be in his name33. This Court in Krishna Kumar Birla vs. Rajendra Singh Lodha (2008) 4 SCC 300 held as under:57. The 1925 Act in this case has nothing to do with the law of inheritance or succession which is otherwise governed by statutory laws or the custom, as the case may be. It makes detailed provisions as to how and in what manner an application for grant of probate is to befiled, considered and granted or refused. Rights and obligations of the parties as also the executors and administrators appointed by the court are laid down therein. Removal of the existing executors and administrators and appointment of subsequent executors are within the exclusive domain of the court. The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the (sic probate) proceedings. Construction of a will relating to the right, title and interest of any other person is beyond the domain of the Probate CourtIn view of the clear-cut exposition of law in the aforesaid case, we hold that grant of probate by the Bombay High Court did not in any manner affect the rights of inheritance of all the legal heirs of the deceased34. In view of the above discussion, we answer the question framed in Paragraph 1, holding that it will be the Portuguese Civil Code, 1867 as applicable in the State of Goa, which shall govern the rights of succession and inheritance even in respect of properties of a Goan domicile situated outside Goa, anywhere in India. | 1 | 7,770 | 2,709 | ### 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:
then the special law shall prevail. This principle will apply with greater force to special law which is also additionally a local law. This judicial principle is based on the latin maxim generalia specialibus non derogant, i.e., general law yields to special law should they operate in the same field on the same subject. Reference may be made to the decision of this Court in R.S. Raghunath vs. State of Karnataka & Ors. (1992) 1 SCC 335 , Commercial Tax Officer, Rajasthan vs. Binani Cements Ltd. & Ors. (2014) 8 SCC 319 and Atma Ram Properties Pvt. Ltd. vs. The Oriental Insurance Co. Ltd. (2018) 2 SCC 27. 30. As far as Goa is concerned, there is a specific judgment in this regard i.e. Justiniano Augusto De Piedade Barreto & Ors. vs. Antonio Vicente Da Fonseca & Ors., (1979) 3 SCC 47 though relating to the interpretation of Section 29 of the Limitation Act, 1963, which deals with local and special laws. Dealing with the issue of the Portuguese Civil Code, the Court held that it could not escape from reaching the conclusion that the Portuguese Civil Code is a local law within the ambit of Section 29(2) of the Limitation Act, 1963. A special law is a law relating to a particular subject while a local law is a law confined to a particular area or territory. In our considered view, the Portuguese Civil Code, in matters of succession, is both a special law and a local law. It is special and local because it deals with laws of succession for the domiciles of Goa only. In Para 14 of this judgment, the Court held as follows: 14. We, therefore, arrive at the conclusion that the body of provisions in the Portuguese Civil Code dealing with the subject of Limitation of suits etc. and in force in the Union Territory of Goa, Daman and Diu only is local law within the meaning of Section 29(2) of the Limitation Act, 1963. As stated earlier these provisions have to be read into the Limitation Act, 1963, as if the Schedule to the Limitation Act is amended mutatis mutandis. No question of repugnancy arises. We agree with the Judicial Commissioner that the provisions of the Portuguese Civil Code relating to Limitation continue to be in force in the Union Territory of Goa, Daman and Diu. 31. In view of the aforesaid, we are clearly of the view that the Portuguese Civil Code being a special Act, applicable only to the domiciles of Goa, will be applicable to the Goan domiciles in respect to all the properties wherever they be situated in India whether within Goa or outside Goa and Section 5 of the Indian Succession Act or the laws of succession would not be applicable to such Goan domiciles. III. What is the effect of the grant of probate by the Bombay High Court in respect of the Will executed by JMP? 32. We shall now deal with the issue what is the effect of the grant of probate of the Will of late JMP by the High Court of Bombay? At the outset, we may say that the order granting probate has not been produced by any side though it is admitted by all sides that probate was granted and the appellants herein had notice of the probate case. Assuming that probate had been granted, what is the effect of the grant of probate on the laws of inheritance? Grant of probate has nothing to do with inheritance. The jurisdiction of a probate court is limited to decide whether the Will is genuine or not. The Will may be genuine but the grant of probate does not mean that the Will is valid even if it violates the laws of inheritance. To give an example, supposing a Hindu bequeathes his ancestral property by a Will and probate of the Will is granted, such grant of probate cannot adversely affect the rights of those members of the coparcenary who had a right in the property since birth. Similar is the case in Goa. The legitime is the right of the heirs by birth. When both the spouses are alive, they own half of the property. Mere grant of probate will not mean that the husband can Will away more than half of the property even if that be in his name. 33. This Court in Krishna Kumar Birla vs. Rajendra Singh Lodha (2008) 4 SCC 300 held as under: 57. The 1925 Act in this case has nothing to do with the law of inheritance or succession which is otherwise governed by statutory laws or the custom, as the case may be. It makes detailed provisions as to how and in what manner an application for grant of probate is to be filed, considered and granted or refused. Rights and obligations of the parties as also the executors and administrators appointed by the court are laid down therein. Removal of the existing executors and administrators and appointment of subsequent executors are within the exclusive domain of the court. The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the (sic probate) proceedings. Construction of a will relating to the right, title and interest of any other person is beyond the domain of the Probate Court. In view of the clear-cut exposition of law in the aforesaid case, we hold that grant of probate by the Bombay High Court did not in any manner affect the rights of inheritance of all the legal heirs of the deceased. 34. In view of the above discussion, we answer the question framed in Paragraph 1, holding that it will be the Portuguese Civil Code, 1867 as applicable in the State of Goa, which shall govern the rights of succession and inheritance even in respect of properties of a Goan domicile situated outside Goa, anywhere in India.
### Response:
1
### Explanation:
alone. This special law making the Portuguese Civil Code applicable is an exception carved out of the general laws of succession namely Indian Succession Act, Hindu Succession Act, 1956, Muslim Personal Law (Shariat) Application Act, 1937 and other laws29. It is a well settled principle of statutory interpretation that when there is a conflict between the general law and the special law then the special law shall prevail. This principle will apply with greater force to special law which is also additionally a local law. This judicial principle is based on the latin maxim generalia specialibus non derogant, i.e., general law yields to special law should they operate in the same field on the same subject30. As far as Goa is concerned, there is a specific judgment in this regard i.e. Justiniano Augusto De Piedade Barreto & Ors. vs. Antonio Vicente Da Fonseca & Ors., (1979) 3 SCC 47 though relating to the interpretation of Section 29 of the Limitation Act, 1963, which deals with local and special laws. Dealing with the issue of the Portuguese Civil Code, the Court held that it could not escape from reaching the conclusion that the Portuguese Civil Code is a local law within the ambit of Section 29(2) of the Limitation Act, 1963. A special law is a law relating to a particular subject while a local law is a law confined to a particular area or territory. In our considered view, the Portuguese Civil Code, in matters of succession, is both a special law and a local law. It is special and local because it deals with laws of succession for the domiciles of Goa only. In Para 14 of this judgment, the Court held as follows:14. We, therefore, arrive at the conclusion that the body of provisions in the Portuguese Civil Code dealing with the subject of Limitation of suits etc. and in force in the Union Territory of Goa, Daman and Diu only is local law within the meaning of Section 29(2) of the Limitation Act, 1963. As stated earlier these provisions have to be read into the Limitation Act, 1963, as if the Schedule to the Limitation Act is amended mutatis mutandis. No question of repugnancy arises. We agree with the Judicial Commissioner that the provisions of the Portuguese Civil Code relating to Limitation continue to be in force in the Union Territory of Goa, Daman and Diu31. In view of the aforesaid, we are clearly of the view that the Portuguese Civil Code being a special Act, applicable only to the domiciles of Goa, will be applicable to the Goan domiciles in respect to all the properties wherever they be situated in India whether within Goa or outside Goa and Section 5 of the Indian Succession Act or the laws of succession would not be applicable to such Goan domicilesIII. What is the effect of the grant of probate by the Bombay High Court in respect of the Will executed by JMP?32. We shall now deal with the issue what is the effect of the grant of probate of the Will of late JMP by the High Court of Bombay? At the outset, we may say that the order granting probate has not been produced by any side though it is admitted by all sides that probate was granted and the appellants herein had notice of the probate case. Assuming that probate had been granted, what is the effect of the grant of probate on the laws of inheritance? Grant of probate has nothing to do with inheritance. The jurisdiction of a probate court is limited to decide whether the Will is genuine or not. The Will may be genuine but the grant of probate does not mean that the Will is valid even if it violates the laws of inheritance. To give an example, supposing a Hindu bequeathes his ancestral property by a Will and probate of the Will is granted, such grant of probate cannot adversely affect the rights of those members of the coparcenary who had a right in the property since birth. Similar is the case in Goa. The legitime is the right of the heirs by birth. When both the spouses are alive, they own half of the property. Mere grant of probate will not mean that the husband can Will away more than half of the property even if that be in his name33. This Court in Krishna Kumar Birla vs. Rajendra Singh Lodha (2008) 4 SCC 300 held as under:57. The 1925 Act in this case has nothing to do with the law of inheritance or succession which is otherwise governed by statutory laws or the custom, as the case may be. It makes detailed provisions as to how and in what manner an application for grant of probate is to befiled, considered and granted or refused. Rights and obligations of the parties as also the executors and administrators appointed by the court are laid down therein. Removal of the existing executors and administrators and appointment of subsequent executors are within the exclusive domain of the court. The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the (sic probate) proceedings. Construction of a will relating to the right, title and interest of any other person is beyond the domain of the Probate CourtIn view of the clear-cut exposition of law in the aforesaid case, we hold that grant of probate by the Bombay High Court did not in any manner affect the rights of inheritance of all the legal heirs of the deceased34. In view of the above discussion, we answer the question framed in Paragraph 1, holding that it will be the Portuguese Civil Code, 1867 as applicable in the State of Goa, which shall govern the rights of succession and inheritance even in respect of properties of a Goan domicile situated outside Goa, anywhere in India.
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M/S EMAAR MGF LAND LIMITED Vs. AFTAB SINGH | to do away with special or additional remedies is not decipherable from any material. The Law Commission 246 th Report, the Statement and Objects of Bill and the notes on clauses do not indicate that amendments were made for overriding special/additional remedies provided under different statutes. In the event, the interpretation as put by the learned counsel for the petitioner is accepted, Section 8 has to be read to override the law laid down by this Court in reference to various special/additional jurisdictions as has been adverted to and noted in judgment of this Court in Booz Allen and Hamilton Inc.(supra) which was never the intent of amendment in Section 8. 52. The amendment in Section 8 cannot be given such expansive meaning and intent so as to inundate entire regime of special legislations where such disputes were held to be not arbitrable. Something which legislation never intended cannot be accepted as side wind to override the settled law. The submission of the petitioner that after the amendment the law as laid down by this Court in National Seeds Corporation Limited(supra) is no more a good law cannot be accepted. The words notwithstanding any judgment, decree or order of the Supreme Court or any Court were meant only to those precedents where it was laid down that the judicial authority while making reference under Section 8 shall entitle to look into various facets of the arbitration agreement, subject matter of the arbitration whether the claim is alive or dead, whether the arbitration agreement is null and void. The words added in Section 8 cannot be meant for any other meaning. Reference is also made to the judgment of this Court in Vimal Kishor Shah and others vs. Jayesh Dinesh Shah and others, (2016) 8 SCC 788. This Court in the above case had occasion to consider the provisions of Section 8 of the Act, 1996 in reference to special remedy provided under Trusts Act, 1882. This Court noticed the judgment of this Court in Booz Allen and Hamilton Inc.(supra) with approval in paragraphs 40 and 42 which is to the following effect: 40. Before we examine the scheme of the Trusts Act, 1882, we consider it apposite to take note of the case law, which has a bearing on this issue. The question came up for consideration before this Court in Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd. as to what is the meaning of the term arbitrability and secondly, which type of disputes are capable of settlement by arbitration under the Act. Their Lordships framed three questions to answer the question viz.: (SCC p. 546, para 34) (1) Whether the disputes having regard to their nature could be resolved by a private forum chosen by the parties (Arbitral Tribunal) or whether such disputes exclusively fall within the domain of public fora (courts)?; (2) Whether the disputes are covered by the arbitration agreement?; and (3) Whether the parties have referred the disputes to arbitrator? 42. The question to be considered in this appeal is whether the disputes relating to affairs and management of the Trust including the disputes arising inter se trustees, beneficiaries in relation to their appointment, powers, duties, obligations, removal, etc. are capable of being settled through arbitration by taking recourse to the provisions of the Act, if there is a clause in the trust deed to that effect or such disputes have to be decided under the Trusts Act, 1882 with the aid of forum prescribed under the said Act? 53. After noticing the issues which have arisen in the above case this Court laid down following in paragraphs 51 and 53: 51. The principle of interpretation that where a specific remedy is given, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute, is one which is very familiar, and which runs through the law, was adopted by this Court in Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke while examining the question of bar in filing civil suit in the context of remedies provided under the Industrial Disputes Act (see G.P. Singh, Principles of Statutory Interpretation, 12th Edn., pp. 763- 64). We apply this principle here because, as held above, the Trusts Act, 1882 creates an obligation and further specifies the rights and duties of the settlor, trustees and the beneficiaries apart from several conditions specified in the trust deed and further provides a specific remedy for its enforcement by filing applications in civil court. It is for this reason, we are of the view that since sufficient and adequate remedy is provided under the Trusts Act, 1882 for deciding the disputes in relation to trust deed, trustees and beneficiaries, the remedy provided under the Arbitration Act for deciding such disputes is barred by implication. 53. We, accordingly, hold that the disputes relating to trust, trustees and beneficiaries arising out of the trust deed and the Trusts Act, 1882 are not capable of being decided by the arbitrator despite existence of arbitration agreement to that effect between the parties. A fortiori, we hold that the application filed by the respondents under Section 11 of the Act is not maintainable on the ground that firstly, it is not based on an arbitration agreement within the meaning of Sections 2(1)(b) and 2(1)(h) read with Section 7 of the Act and secondly, assuming that there exists an arbitration agreement (Clause 20 of the trust deed) yet the disputes specified therein are not capable of being referred to private arbitration for their adjudication on merits. 54. This Court held that disputes within the trust, trustees and beneficiaries are not capable of being decided by the arbitrator despite existence of arbitration agreement to that effect between the parties. This Court held that the remedy provided under the Arbitration Act for deciding such disputes is barred by implication. The ratio laid down in the above case is fully applicable with regard to disputes raised in consumer fora. | 0[ds]25. This Court in the series of judgments as noticed above considered the provisions of Consumer Protection Act, 1986 as well as Arbitration Act, 1996 and laid down that complaint under Consumer Protection Act being a special remedy, despite there being an arbitration agreement the proceedings before Consumer Forum have to go on and no error committed by Consumer Forum on rejecting the application. There is reason for not interjecting proceedings under Consumer Protection Act on the strength an arbitration agreement by Act, 1996. The remedy under Consumer Protection Act is a remedy provided to a consumer when there is a defect in any goods or services. The complaint means any allegation in writing made by a complainant has also been explained in Section 2(c) of the Act. The remedy under the Consumer Protection Act is confined to complaint by consumer as defined under the Act for defect or deficiencies caused by a service provider, the cheap and a quick remedy has been provided to the consumer which is the object and purpose of the Act as noticed above26. Not only the proceedings of Consumer Protection Act, 1986 are special proceedings which were required to be continued under the Act despite an arbitration agreement, there are large number of other fields where an arbitration agreement can neither stop or stultify the proceedings. For example, any action of a party, omission or commission of a person which amounts to an offence has to be examined by a criminal court and no amount of agreement between the parties shall be relevant for the said case. For example, there may be a commercial agreement between two parties that all issues pertaining to transaction are to be decided by arbitration as per arbitration clause in the agreement. In case where a cheque is dishonoured by one party in transaction, despite the arbitration agreement party aggrieved has to approach the criminal court. Similarly, there are several issues which are nonarbitrable. There can be prohibition both express or implied for not deciding a dispute on the basis of an arbitration agreement. This Court had occasion to consider the above aspect and has noticed various disputes which are, reference is made to the judgment of this Court in Booz Allen and Hamilton Inc. vs. SBI Home Finance Limited and others, (2011) 5 SCC 532. In paragraphs 35 to 38 following has been laid down:35. The Arbitral Tribunals are private fora chosen voluntarily by the parties to the dispute, to adjudicate their disputes in place of courts and tribunals which are public fora constituted under the laws of the country. Every civil or commercial dispute, either contractual or, which can be decided by a court, is in principle capable of being adjudicated and resolved by arbitration unless the jurisdiction of the Arbitral Tribunals is excluded either expressly or by necessary implication. Adjudication of certain categories of proceedings are reserved by the legislature exclusively for public fora as a matter of public policy. Certain other categories of cases, though not expressly reserved for adjudication by public fora (courts and tribunals), may by necessary implication stand excluded from the purview of private fora. Consequently, where the cause/dispute is inarbitrable, the court where a suit is pending, will refuse to refer the parties to arbitration, under Section 8 of the Act, even if the parties might have agreed upon arbitration as the forum for settlement of such disputesarbitrable disputes are: (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency andp matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes37. It may be noticed that the cases referred to above relate to actions in rem. A right in rem is a right exercisable against the world at large, as contrasted from a right in personam which is an interest protected solely against specific individuals. Actions in personam refer to actions determining the rights and interests of the parties themselves in ther of the case, whereas actions in rem refer to actions determining the title to property and the rights of the parties, not merely among themselves but also against all persons at any time claiming an interest in that property. Correspondingly, a judgment in personam refers to a judgment against a person as distinguished from a judgment against a thing, right or status and a judgment in rem refers to a judgment that determines the status or condition of property which operates directly on the property itself. (Vide Blacks Law Dictionary.)38. Generally and traditionally all disputes relating to rights in personam are considered to be amenable to arbitration; and all disputes relating to rights in rem are required to be adjudicated by courts and public tribunals, being unsuited for private arbitration. This is not however a rigid or inflexible rule. Disputes relating to subordinate rights in personam arising from rights in rem have always been considered to be arbitrable27. The complaints filed under the Consumer Protection Act can also be proceeded with despite there being any arbitration agreement between the parties which have been well settled by the catena of decisions as noticed above32. We have already noted several categories of cases, which are not arbitrable. While referring to judgment of this Court in Booz Allen and Hamilton Inc. (supra), those principles have again been reiterated by this Court in A. Ayyasamy (supra), Dr. A.K. Sikri, J. delivering the judgment in that case has noticed certain cases, which are not arbitrable in paragraph No.14, which is as follows:14. In the instant case, there is no dispute about the arbitration agreement inasmuch as there is a specific arbitration clause in the partnership deed. However, the question is as to whether the dispute raised by the respondent in the suit is incapable of settlement through arbitration. As pointed out above, the Act does not make any provision excluding any category of disputes treating them as(i) patent, trade marks and copyright;33. Dr. Justice D.Y. Chandrachud, J. in his concurring opinion has referred to Booz Allen and Hamilton Inc. (supra) and noticed the categories of cases, which are not arbitrable. Paragraph No. 35 of the judgment is quoted as below:35. Ordinarily every civil or commercial dispute whether based on contract or otherwise which is capable of being decided by a civil court is in principle capable of being adjudicated upon and resolved by arbitrationsubject to the dispute being governed by the arbitration agreementunless the jurisdiction of the Arbitral Tribunal is excluded either expressly or by necessary implication. In Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd., this Court held that (at SCC p. 546, para35) adjudication of certain categories of proceedings is reserved by the legislature exclusively for public fora as a matter of public policy. Certain other categories of cases, though not exclusively reserved for adjudication by courts and tribunals may by necessary implication stand excluded from the purview of private fora. This Court set down certain examples ofe disputes such as: (SCC pp.(i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences;(ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights and child custody;(iv) insolvency and winding up;(v) testamentary matters, such as the grant of probate, letters of administration and succession certificates; and(vi) eviction or tenancy matters governed by special statutes where a tenant enjoys special protection against eviction and specific courts are conferred with the exclusive jurisdiction to deal with the disputeThis Court held that this class of actions operates in rem, which is a right exercisable against the world at large as contrasted with a right in personam which is an interest protected against specified individuals. All disputes relating to rights in personam are considered to be amenable to arbitration while rights in rem are required to be adjudicated by courts and public tribunals. The enforcement of a mortgage has been held to be a right in rem for which proceedings in arbitration would not be maintainable. In Vimal Kishor Shah v. Jayesh Dinesh Shah, (2016) 8 SCC 788 this Court added a seventh category of cases to the sixe categories set out in Booz Allen, namely, disputes relating to trusts, trustees and beneficiaries arising out of a trust deed and the Trust Act35. Section 5 contains an injunction to judicial authority from intervening except where so provided in this Part. Section 2(3), Section 8, Section 11 and Section 34 are some of the provisions, which provides for judicial intervention in matters. Here, we are concerned with power of judicial authority under Section 8, hence Section 5 is not much relevant in the present case46. The law as declared by this Court in the above cases was in existence when the Law Commission submitted its 246 th Report and Parliament considered the Bill, 2015 for Amendment Act, 2016. The Law Commission itself in its Report has referred to amendment in Section 8 in context of decision of this Court in Sukanya Holdings (P) Ltd. (supra), which was clearly noticed in the Note to Section 8 as extracted above. The wordsnotwithstanding any judgment, decree or order of the Supreme Court or anyby amendment in Section 8 were with intent to minimise the intervention of judicial authority in context of arbitration agreement. As per the amended Section 8(1), the judicial authority has only to consider the question whether the parties have a valid arbitration agreement? The Court cannot refuse to refer the parties to arbitrationunless it finds that prima facie no valid arbitration agreement. The amended provision, thus, limits the intervention by judicial authority to only one aspect, i.e. refusal by judicial authority to refer is confined to only one aspect, when it finds that prima facie no valid arbitration agreement exists. Other several conditions, which were noticed by this court in various pronouncements made prior to amendment were not to be adhered to and the Legislative intendment was clear departure from fulfilling various conditions as noticed in the judgment of P. Anand Gajapathi Raju (supra) and Sukanya Holdings (P) Ltd. (supra)49. This Court, thus, in the above cases has noticed that amendments are expressed to apply notwithstanding any prior judicial precedents, but the scope of amendment under Section 8(1) was confined to three categories as has been noted in Paragraph No.29. Amendments under Section 8, thus, were aimed to minimise the scope of judicial authority to refuse reference to arbitration and only ground on which reference could have been refused was that it prima facie finds that no valid arbitration agreement exists. Notwithstanding any prior judicial precedents referred to under Section 8(1) relates to those judicial precedents, which explained the discretion and power of judicial authority to examine various aspects while exercising power under Section 850. The Legislative intent and object were confined to only above aspects and was not on those aspects, where certain disputes were not required to be referred to arbitration. Can it be said that after amendment under Section 8(1), the law laid down by this Court in reference to Section 2(3), where large number of categories have been held to bee has been reversed or set at naught. Neither any such Legislature intendment was there nor any such consequence was contemplated that law laid down by this Court in context of Section 2(3) has to be ignored or reversed51. While carrying out amendment under Section 8(1) of Act, 1996, the statutes providing additional remedies/special remedies were not in contemplation. The legislative intent is clear that judicial authoritys discretion to refuse arbitration was minimise in respect of jurisdiction exercise by judicial authority in reference to Section 8. The amendment was also aimed to do away with special or additional remedies is not decipherable from any material. The Law Commission 246 th Report, the Statement and Objects of Bill and the notes on clauses do not indicate that amendments were made for overriding special/additional remedies provided under different statutes. In the event, the interpretation as put by the learned counsel for the petitioner is accepted, Section 8 has to be read to override the law laid down by this Court in reference to various special/additional jurisdictions as has been adverted to and noted in judgment of this Court in Booz Allen and Hamilton Inc.(supra) which was never the intent of amendment in Section 852. The amendment in Section 8 cannot be given such expansive meaning and intent so as to inundate entire regime of special legislations where such disputes were held to be not arbitrable. Something which legislation never intended cannot be accepted as side wind to override the settled law. The submission of the petitioner that after the amendment the law as laid down by this Court in National Seeds Corporation Limited(supra) is no more a good law cannot be accepted. The wordsnotwithstanding any judgment, decree or order of the Supreme Court or anywere meant only to those precedents where it was laid down that the judicial authority while making reference under Section 8 shall entitle to look into various facets of the arbitration agreement, subject matter of the arbitration whether the claim is alive or dead, whether the arbitration agreement is null and void. The words added in Section 8 cannot be meant for any other meaning. Reference is also made to the judgment of this Court in Vimal Kishor Shah and others vs. Jayesh Dinesh Shah and others, (2016) 8 SCC 788. This Court in the above case had occasion to consider the provisions of Section 8 of the Act, 1996 in reference to special remedy provided under Trusts Act, 1882. This Court noticed the judgment of this Court in Booz Allen and Hamilton Inc.(supra) with approval in paragraphs 40 and 42 which is to the following effect:40. Before we examine the scheme of the Trusts Act, 1882, we consider it apposite to take note of the case law, which has a bearing on this issue. The question came up for consideration before this Court in Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd. as to what is the meaning of the term arbitrability and secondly, which type of disputes are capable of settlement by arbitration under the Act. Their Lordships framed three questions to answer the question viz.: (SCC p. 546, para 34)(1) Whether the disputes having regard to their nature could be resolved by a private forum chosen by the parties (Arbitral Tribunal) or whether such disputes exclusively fall within the domain of public fora (courts)?;(2) Whether the disputes are covered by the arbitration agreement?; and(3) Whether the parties have referred the disputes to arbitrator?42. The question to be considered in this appeal is whether the disputes relating to affairs and management of the Trust including the disputes arising inter se trustees, beneficiaries in relation to their appointment, powers, duties, obligations, removal, etc. are capable of being settled through arbitration by taking recourse to the provisions of the Act, if there is a clause in the trust deed to that effect or such disputes have to be decided under the Trusts Act, 1882 with the aid of forum prescribed under the said Act?53. After noticing the issues which have arisen in the above case this Court laid down following in paragraphs 51 and 53:51. The principle of interpretation that where a specific remedy is given, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute, is one which is very familiar, and which runs through the law, was adopted by this Court in Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke while examining the question of bar in filing civil suit in the context of remedies provided under the Industrial Disputes Act (see G.P. Singh, Principles of Statutory Interpretation, 12th Edn., pp. 76364). We apply this principle here because, as held above, the Trusts Act, 1882 creates an obligation and further specifies the rights and duties of the settlor, trustees and the beneficiaries apart from several conditions specified in the trust deed and further provides a specific remedy for its enforcement by filing applications in civil court. It is for this reason, we are of the view that since sufficient and adequate remedy is provided under the Trusts Act, 1882 for deciding the disputes in relation to trust deed, trustees and beneficiaries, the remedy provided under the Arbitration Act for deciding such disputes is barred by implication53. We, accordingly, hold that the disputes relating to trust, trustees and beneficiaries arising out of the trust deed and the Trusts Act, 1882 are not capable of being decided by the arbitrator despite existence of arbitration agreement to that effect between the parties. A fortiori, we hold that the application filed by the respondents under Section 11 of the Act is not maintainable on the ground that firstly, it is not based on an arbitration agreement within the meaning of Sections 2(1)(b) and 2(1)(h) read with Section 7 of the Act and secondly, assuming that there exists an arbitration agreement (Clause 20 of the trust deed) yet the disputes specified therein are not capable of being referred to private arbitration for their adjudication on merits54. This Court held that disputes within the trust, trustees and beneficiaries are not capable of being decided by the arbitrator despite existence of arbitration agreement to that effect between the parties. This Court held that the remedy provided under the Arbitration Act for deciding such disputes is barred by implication. The ratio laid down in the above case is fully applicable with regard to disputes raised in consumer fora. | 0 | 13,313 | 3,359 | ### Instruction:
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to do away with special or additional remedies is not decipherable from any material. The Law Commission 246 th Report, the Statement and Objects of Bill and the notes on clauses do not indicate that amendments were made for overriding special/additional remedies provided under different statutes. In the event, the interpretation as put by the learned counsel for the petitioner is accepted, Section 8 has to be read to override the law laid down by this Court in reference to various special/additional jurisdictions as has been adverted to and noted in judgment of this Court in Booz Allen and Hamilton Inc.(supra) which was never the intent of amendment in Section 8. 52. The amendment in Section 8 cannot be given such expansive meaning and intent so as to inundate entire regime of special legislations where such disputes were held to be not arbitrable. Something which legislation never intended cannot be accepted as side wind to override the settled law. The submission of the petitioner that after the amendment the law as laid down by this Court in National Seeds Corporation Limited(supra) is no more a good law cannot be accepted. The words notwithstanding any judgment, decree or order of the Supreme Court or any Court were meant only to those precedents where it was laid down that the judicial authority while making reference under Section 8 shall entitle to look into various facets of the arbitration agreement, subject matter of the arbitration whether the claim is alive or dead, whether the arbitration agreement is null and void. The words added in Section 8 cannot be meant for any other meaning. Reference is also made to the judgment of this Court in Vimal Kishor Shah and others vs. Jayesh Dinesh Shah and others, (2016) 8 SCC 788. This Court in the above case had occasion to consider the provisions of Section 8 of the Act, 1996 in reference to special remedy provided under Trusts Act, 1882. This Court noticed the judgment of this Court in Booz Allen and Hamilton Inc.(supra) with approval in paragraphs 40 and 42 which is to the following effect: 40. Before we examine the scheme of the Trusts Act, 1882, we consider it apposite to take note of the case law, which has a bearing on this issue. The question came up for consideration before this Court in Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd. as to what is the meaning of the term arbitrability and secondly, which type of disputes are capable of settlement by arbitration under the Act. Their Lordships framed three questions to answer the question viz.: (SCC p. 546, para 34) (1) Whether the disputes having regard to their nature could be resolved by a private forum chosen by the parties (Arbitral Tribunal) or whether such disputes exclusively fall within the domain of public fora (courts)?; (2) Whether the disputes are covered by the arbitration agreement?; and (3) Whether the parties have referred the disputes to arbitrator? 42. The question to be considered in this appeal is whether the disputes relating to affairs and management of the Trust including the disputes arising inter se trustees, beneficiaries in relation to their appointment, powers, duties, obligations, removal, etc. are capable of being settled through arbitration by taking recourse to the provisions of the Act, if there is a clause in the trust deed to that effect or such disputes have to be decided under the Trusts Act, 1882 with the aid of forum prescribed under the said Act? 53. After noticing the issues which have arisen in the above case this Court laid down following in paragraphs 51 and 53: 51. The principle of interpretation that where a specific remedy is given, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute, is one which is very familiar, and which runs through the law, was adopted by this Court in Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke while examining the question of bar in filing civil suit in the context of remedies provided under the Industrial Disputes Act (see G.P. Singh, Principles of Statutory Interpretation, 12th Edn., pp. 763- 64). We apply this principle here because, as held above, the Trusts Act, 1882 creates an obligation and further specifies the rights and duties of the settlor, trustees and the beneficiaries apart from several conditions specified in the trust deed and further provides a specific remedy for its enforcement by filing applications in civil court. It is for this reason, we are of the view that since sufficient and adequate remedy is provided under the Trusts Act, 1882 for deciding the disputes in relation to trust deed, trustees and beneficiaries, the remedy provided under the Arbitration Act for deciding such disputes is barred by implication. 53. We, accordingly, hold that the disputes relating to trust, trustees and beneficiaries arising out of the trust deed and the Trusts Act, 1882 are not capable of being decided by the arbitrator despite existence of arbitration agreement to that effect between the parties. A fortiori, we hold that the application filed by the respondents under Section 11 of the Act is not maintainable on the ground that firstly, it is not based on an arbitration agreement within the meaning of Sections 2(1)(b) and 2(1)(h) read with Section 7 of the Act and secondly, assuming that there exists an arbitration agreement (Clause 20 of the trust deed) yet the disputes specified therein are not capable of being referred to private arbitration for their adjudication on merits. 54. This Court held that disputes within the trust, trustees and beneficiaries are not capable of being decided by the arbitrator despite existence of arbitration agreement to that effect between the parties. This Court held that the remedy provided under the Arbitration Act for deciding such disputes is barred by implication. The ratio laid down in the above case is fully applicable with regard to disputes raised in consumer fora.
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exercise by judicial authority in reference to Section 8. The amendment was also aimed to do away with special or additional remedies is not decipherable from any material. The Law Commission 246 th Report, the Statement and Objects of Bill and the notes on clauses do not indicate that amendments were made for overriding special/additional remedies provided under different statutes. In the event, the interpretation as put by the learned counsel for the petitioner is accepted, Section 8 has to be read to override the law laid down by this Court in reference to various special/additional jurisdictions as has been adverted to and noted in judgment of this Court in Booz Allen and Hamilton Inc.(supra) which was never the intent of amendment in Section 852. The amendment in Section 8 cannot be given such expansive meaning and intent so as to inundate entire regime of special legislations where such disputes were held to be not arbitrable. Something which legislation never intended cannot be accepted as side wind to override the settled law. The submission of the petitioner that after the amendment the law as laid down by this Court in National Seeds Corporation Limited(supra) is no more a good law cannot be accepted. The wordsnotwithstanding any judgment, decree or order of the Supreme Court or anywere meant only to those precedents where it was laid down that the judicial authority while making reference under Section 8 shall entitle to look into various facets of the arbitration agreement, subject matter of the arbitration whether the claim is alive or dead, whether the arbitration agreement is null and void. The words added in Section 8 cannot be meant for any other meaning. Reference is also made to the judgment of this Court in Vimal Kishor Shah and others vs. Jayesh Dinesh Shah and others, (2016) 8 SCC 788. This Court in the above case had occasion to consider the provisions of Section 8 of the Act, 1996 in reference to special remedy provided under Trusts Act, 1882. This Court noticed the judgment of this Court in Booz Allen and Hamilton Inc.(supra) with approval in paragraphs 40 and 42 which is to the following effect:40. Before we examine the scheme of the Trusts Act, 1882, we consider it apposite to take note of the case law, which has a bearing on this issue. The question came up for consideration before this Court in Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd. as to what is the meaning of the term arbitrability and secondly, which type of disputes are capable of settlement by arbitration under the Act. Their Lordships framed three questions to answer the question viz.: (SCC p. 546, para 34)(1) Whether the disputes having regard to their nature could be resolved by a private forum chosen by the parties (Arbitral Tribunal) or whether such disputes exclusively fall within the domain of public fora (courts)?;(2) Whether the disputes are covered by the arbitration agreement?; and(3) Whether the parties have referred the disputes to arbitrator?42. The question to be considered in this appeal is whether the disputes relating to affairs and management of the Trust including the disputes arising inter se trustees, beneficiaries in relation to their appointment, powers, duties, obligations, removal, etc. are capable of being settled through arbitration by taking recourse to the provisions of the Act, if there is a clause in the trust deed to that effect or such disputes have to be decided under the Trusts Act, 1882 with the aid of forum prescribed under the said Act?53. After noticing the issues which have arisen in the above case this Court laid down following in paragraphs 51 and 53:51. The principle of interpretation that where a specific remedy is given, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute, is one which is very familiar, and which runs through the law, was adopted by this Court in Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke while examining the question of bar in filing civil suit in the context of remedies provided under the Industrial Disputes Act (see G.P. Singh, Principles of Statutory Interpretation, 12th Edn., pp. 76364). We apply this principle here because, as held above, the Trusts Act, 1882 creates an obligation and further specifies the rights and duties of the settlor, trustees and the beneficiaries apart from several conditions specified in the trust deed and further provides a specific remedy for its enforcement by filing applications in civil court. It is for this reason, we are of the view that since sufficient and adequate remedy is provided under the Trusts Act, 1882 for deciding the disputes in relation to trust deed, trustees and beneficiaries, the remedy provided under the Arbitration Act for deciding such disputes is barred by implication53. We, accordingly, hold that the disputes relating to trust, trustees and beneficiaries arising out of the trust deed and the Trusts Act, 1882 are not capable of being decided by the arbitrator despite existence of arbitration agreement to that effect between the parties. A fortiori, we hold that the application filed by the respondents under Section 11 of the Act is not maintainable on the ground that firstly, it is not based on an arbitration agreement within the meaning of Sections 2(1)(b) and 2(1)(h) read with Section 7 of the Act and secondly, assuming that there exists an arbitration agreement (Clause 20 of the trust deed) yet the disputes specified therein are not capable of being referred to private arbitration for their adjudication on merits54. This Court held that disputes within the trust, trustees and beneficiaries are not capable of being decided by the arbitrator despite existence of arbitration agreement to that effect between the parties. This Court held that the remedy provided under the Arbitration Act for deciding such disputes is barred by implication. The ratio laid down in the above case is fully applicable with regard to disputes raised in consumer fora.
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M/s. Raghubar Dayal Jai Prakash & Others Vs. Union of India & Others | dealing with the constitutional objection which was sought to be supported by contrasting these provisions with analogous Indian legislation wherein the price payable was fixed by the Act itself, to which we shall advert a little later, it might be useful to narrate the circumstances in which the price at which the closing out was to be settled was fixed by the Central Government in the impugned notification. The circumstances are thus described in the counter-affidavit filed on behalf of the State to these petitions : On July 17, 1958, the Government of India issued a notification under S. 17. of the Act banning forward contracts of minor foodgrains and a similar notification followed on the next day banning forward contracts in Khandsari sugar. We closure of these markets increased the speculative activity in the forward market in gur. The price situation in respect of gur became critical in the last week of December 1958 when bull operators acting in concert started to rig up the prices. Contracts were entered into at these excessive prices in the belief that even if Government intervened and took drastic steps of closing out the contracts by a notification under S. 15, the benefits of the high prices on the outstanding contracts would, in accordance with past practice, be available to the bull operators. On a review of the situation existing as aforesaid, the Government found that at Hapur which was a representative market, the rate for gur futures prices rose from Rs. 11.98 per maund on January 17, 1958, to Rs. 16.27 per maund on February 11, 1959, and the Government considered that these forward prices were exerting a very unhealthy influence on the spot-prices of the commodity. It was in these circumstances that in the impugned notification the price at which the forward contract should be closed out was fixed at the average of the closing rates prevailing in the forward markets during the period of three months immediate]y preceding the date of the notification.29. The question now for consideration is whether on the scheme of the Act read in conjunction with the policy underlying it and the purposes for which it is enacted there could found a guidance as to the principles on which the price of settling out could be fixed by the Government? In this connection we might usefully refer to the provisions of the Essential Commodities Act, 1955, under which Government is vested with power to determine the prices at which essential commodities may be bought or sold. Under S. 3(2) of the Essential Commodities Act, 1955, the Central Government is empowered by order made under the Act to provide for controlling the price at which any essential commodity may be bought and sold. The control under that enactment, as the one now under consideration, is to be exercised for ensuring that the price fixed shall be reasonable having regard to the cost of production and the general level of prices prevailing of other like commodities which are the subject of legitimate and proper trade. In the very nature of things it is not possible for the Legislature to determine beforehand the price at which a commodity may be sold or at which contracts in relation thereto might be entered into. The price must be dependent upon factors varying from time to time and cannot, therefore, be always a proper subject of legislative determination. Any fixation of prices either by naming a figure or by reference to the market price ruling on a particular date, must be productive of hardship both by reason of being mechanical an therefore out of tune with the varying factors which might obtain from time to time, as also of being liable to manipulation by unscrupulous traders as in the situation described by the Government in regard to gur futures in the passage just now extracted.30. Nor is it any defect in the Act that it dues not in so many terms lay down the principles for the fixation of the price. In view of what we have stated earlier, the only guidance which the Parliament could have given was to direct that the price fixed be reasonable taking into account the relevant factors we have enumerated earlier, and this we consider is implicit in the provision in S. 16 of the Act as much as in S. 3 of the Essential Commodities Act.31. No doubt, learned Counsel pointed out the provisions contained in the West Bengal Raw Jute Act (Act XXV of 1948), the Jute Goods Act V of 1950 and the Bombay Forward Markets Contracts Act (Act LXIV of 1945) in which in respect of closing out of contracts which were illegalised on the coming into force of the enactment, the price at which the contracts could be settled was fixed as the spot-price of the closing day. In normal circumstances that might have been a fair rule to adopt, but from these precedents no rule of law can be derived that a fixation of a price on any other basis is either improper, unjust or unconstitutional. It is patent that if prices are artificially rigged up and inflated as a result of excessive speculation and unhealthy trade practices, the spot-price prevailing on the closing day would not represent the reasonable price at which contract should be closed out. And this was precisely the case of the respondent State as the reasons which compelled it to depart from the principle of fixation on the basis of the spot-price on the closing day. We see, therefore, no sufficient ground for holding that the power conferred on the Central Government to fix the price at which contracts could be closed out is either legislatively incompetent or constitutionally invalid. What we stated earlier should suffice to show that the actual price at which the contracts were required to be settled out fixed in the impugned notification conformed to the requirement of reasonableness in Art. 19(6) and that underlying the relevant provisions of the statute. | 0[ds]It was, therefore, necessary that the instrument chosen should be subject to control so as effectively to further the policy of the scheme of regulation and that is the ratio underlying the provisions in S. 6 of the Act and those which follow it in Ch. III. In this connection it is necessary to add that the restrictions which are impugned as unconstitutional are imposed only on "recognised" associations. Parliament could well have chosen to effect the regulation directly through an official agency instead of through the medium of a voluntary association. In such all event, neither the traders nor their associations could complain of any violation of the law. The mere fact therefore that Parliament chose to utilise the machinery of voluntary trades associations for the purpose of enforcing regulatory control could not invalidate the provision of laws which are designed to ensure effective control over the mechanism of forward trading.We have no hesitation in rejecting the argument that the provisions in Ch. III of the impugned Act, and in particular those which we have set out above, infringe, in any manner, the freedom guaranteed by sub-cl. (c) of cl. (i) of Art,is manifest that the provisions of the Act cannot be defeated and the exercise of the regulatory power of Government nullified by traders in a commodity not forming an association which could be recognised under Ch. III. Similarly the power conferred on Government by S. 15(1) of the Act, cannot be made dependent on such voluntary associations satisfying the requirements for recognition, such at if the associations refuse to do so the power does not emerge. No doubt, when there are associations whose bye-laws and regulations conform to the requirements of the law the recognition of such associations either before or simultaneously with the issue of a notification under S. 15 would enable the forward trading to be conducted without a break. But this is not the same thing as the submission that on a proper construction of S. 15 the recognition of an association for the purpose of forward trading in a commodity is an essential pre-requisite before a notification under S. 15 could beis plain enough that enquiries which had to precede the recognition of associations under Ch. III do take some time, and in fact in the present case the recognitions were accorded in June 1959, and if emergent action was required to control a situation which threatened to worsen rapidly, we do not consider that the action of the Government in stepping in even before the recognition of associations could in the circumstances be characterised as unreasonable. After all, it is a question of balancing individual rights and the profits which could be reaped by individuals under an existing state of the law against the public benefit arising from the exercising of control, and if Government considered that the latter would be best served by immediate action under a valid provision of the law, and the circumstances reasonably warranted that opinion, we hold, that in the absence of any proof of mala fide, and there is none here, the action of the Government cannot be held to violate the constitutional limits set by cl. (6) of Art,suitability of a commodity for forward trading depends on factors which are far from static and similarly the need for bringing forward trading within the regulatory provisions of the Act depends on factors which are subject to variation over periods of time. Besides, the nature of the commodity, the size of its production, the scale of the demand for it in relation to the supply and the demand itself being not quantitatively fixed but changing so as to require a continuous assessment through the medium of futures market are all elements that necessitate regulation, and these are variable. We have not attempted to be exhaustive in naming the several factors but these are some of the characteristics which call for and make possible, effective regulation. It would, therefore, follow that the commodities which would satisfy these tests or requirements can only be ascertained from time to time after enquiry and investigation. They cannot obviously be specified in a statute. It is because of these considerations and the need for expert opinion and guidance on the matter that the Act has, by its Ch. II, provided for the constitution of a Forward Markets Commission on whom has been laid the duty of advising Government on the situation as it exists from time to time and make recommendations in that regard. In our opinion, the selection of the commodity for the regulation of forward trading in it or of prohibition of such trading can only be left to the Government and the purposes for which the power is to be used and the machinery created for the investigation furnish sufficient guidance as to preclude any challenge on the ground of a violation of Art. 14. What we have just now said as regards the selection of the commodity would suffice to answer the argument regarding the selection of the time at which the notification under S. 15(1) might take place.It cannot be therefore predicated off-hand and as a matter of law that every restriction which operates with retrospective effect and affects rights obtained under the pre-existing law, is unconstitutional as obnoxious to the freedom guaranteed by sub-cls. (f) or (g) of cl. (1) of Art. 19. It might, in particular cases, even be necessary to completely efface a subsisting contract but in the present case that is not what was done but only to vary its terms so that it would be settled out at, the prices determined by the otherhold that S. 15 is constitutionally valid. It is only necessary to add that it is manifest that the restriction on trading is in the interest of the general public since the public have a vital interest in the availability of an essential commodity like gur at reasonable and relatively stable prices and the only question for determination for the application of cls. (5) or (6) of Art. 19 would the reasonableness of the measures contemplated by the law. Taking into account the machinery created in Ch. II of the Act in the way of an expert body to furnish Government with advice on such a complex problem and the functions of the committee, we are clearly of the view that the restrictions imposed by S. 15 of the Act are reasonable and pass the tests for a valid law under cls. (5) and (6) of Art.this connection we might usefully refer to the provisions ofthe Essential Commodities Act, 1955, under which Government is vested with power to determine the prices at which essential commodities may be bought or sold. Under S. 3(2) ofthe Essential Commodities Act, 1955, the Central Government is empowered by order made under the Act to provide for controlling the price at which any essential commodity may be bought and sold. The control under that enactment, as the one now under consideration, is to be exercised for ensuring that the price fixed shall be reasonable having regard to the cost of production and the general level of prices prevailing of other like commodities which are the subject of legitimate and proper trade. In the very nature of things it is not possible for the Legislature to determine beforehand the price at which a commodity may be sold or at which contracts in relation thereto might be entered into. The price must be dependent upon factors varying from time to time and cannot, therefore, be always a proper subject of legislative determination. Any fixation of prices either by naming a figure or by reference to the market price ruling on a particular date, must be productive of hardship both by reason of being mechanical an therefore out of tune with the varying factors which might obtain from time to time, as also of being liable to manipulation by unscrupulous traders as in the situation described by the Government in regard to gur futures in the passage just now extracted.30. Nor is it any defect in the Act that it dues not in so many terms lay down the principles for the fixation of the price. In view of what we have stated earlier, the only guidance which the Parliament could have given was to direct that the price fixed be reasonable taking into account the relevant factors we have enumerated earlier, and this we consider is implicit in the provision in S. 16 of the Act as much as in S. 3 of the Essential Commoditiesnormal circumstances that might have been a fair rule to adopt, but from these precedents no rule of law can be derived that a fixation of a price on any other basis is either improper, unjust or unconstitutional. It is patent that if prices are artificially rigged up and inflated as a result of excessive speculation and unhealthy trade practices, the spot-price prevailing on the closing day would not represent the reasonable price at which contract should be closed out. And this was precisely the case of the respondent State as the reasons which compelled it to depart from the principle of fixation on the basis of the spot-price on the closing day. We see, therefore, no sufficient ground for holding that the power conferred on the Central Government to fix the price at which contracts could be closed out is either legislatively incompetent or constitutionally invalid. What we stated earlier should suffice to show that the actual price at which the contracts were required to be settled out fixed in the impugned notification conformed to the requirement of reasonableness in Art. 19(6) and that underlying the relevant provisions of the statute. | 0 | 10,820 | 1,768 | ### Instruction:
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dealing with the constitutional objection which was sought to be supported by contrasting these provisions with analogous Indian legislation wherein the price payable was fixed by the Act itself, to which we shall advert a little later, it might be useful to narrate the circumstances in which the price at which the closing out was to be settled was fixed by the Central Government in the impugned notification. The circumstances are thus described in the counter-affidavit filed on behalf of the State to these petitions : On July 17, 1958, the Government of India issued a notification under S. 17. of the Act banning forward contracts of minor foodgrains and a similar notification followed on the next day banning forward contracts in Khandsari sugar. We closure of these markets increased the speculative activity in the forward market in gur. The price situation in respect of gur became critical in the last week of December 1958 when bull operators acting in concert started to rig up the prices. Contracts were entered into at these excessive prices in the belief that even if Government intervened and took drastic steps of closing out the contracts by a notification under S. 15, the benefits of the high prices on the outstanding contracts would, in accordance with past practice, be available to the bull operators. On a review of the situation existing as aforesaid, the Government found that at Hapur which was a representative market, the rate for gur futures prices rose from Rs. 11.98 per maund on January 17, 1958, to Rs. 16.27 per maund on February 11, 1959, and the Government considered that these forward prices were exerting a very unhealthy influence on the spot-prices of the commodity. It was in these circumstances that in the impugned notification the price at which the forward contract should be closed out was fixed at the average of the closing rates prevailing in the forward markets during the period of three months immediate]y preceding the date of the notification.29. The question now for consideration is whether on the scheme of the Act read in conjunction with the policy underlying it and the purposes for which it is enacted there could found a guidance as to the principles on which the price of settling out could be fixed by the Government? In this connection we might usefully refer to the provisions of the Essential Commodities Act, 1955, under which Government is vested with power to determine the prices at which essential commodities may be bought or sold. Under S. 3(2) of the Essential Commodities Act, 1955, the Central Government is empowered by order made under the Act to provide for controlling the price at which any essential commodity may be bought and sold. The control under that enactment, as the one now under consideration, is to be exercised for ensuring that the price fixed shall be reasonable having regard to the cost of production and the general level of prices prevailing of other like commodities which are the subject of legitimate and proper trade. In the very nature of things it is not possible for the Legislature to determine beforehand the price at which a commodity may be sold or at which contracts in relation thereto might be entered into. The price must be dependent upon factors varying from time to time and cannot, therefore, be always a proper subject of legislative determination. Any fixation of prices either by naming a figure or by reference to the market price ruling on a particular date, must be productive of hardship both by reason of being mechanical an therefore out of tune with the varying factors which might obtain from time to time, as also of being liable to manipulation by unscrupulous traders as in the situation described by the Government in regard to gur futures in the passage just now extracted.30. Nor is it any defect in the Act that it dues not in so many terms lay down the principles for the fixation of the price. In view of what we have stated earlier, the only guidance which the Parliament could have given was to direct that the price fixed be reasonable taking into account the relevant factors we have enumerated earlier, and this we consider is implicit in the provision in S. 16 of the Act as much as in S. 3 of the Essential Commodities Act.31. No doubt, learned Counsel pointed out the provisions contained in the West Bengal Raw Jute Act (Act XXV of 1948), the Jute Goods Act V of 1950 and the Bombay Forward Markets Contracts Act (Act LXIV of 1945) in which in respect of closing out of contracts which were illegalised on the coming into force of the enactment, the price at which the contracts could be settled was fixed as the spot-price of the closing day. In normal circumstances that might have been a fair rule to adopt, but from these precedents no rule of law can be derived that a fixation of a price on any other basis is either improper, unjust or unconstitutional. It is patent that if prices are artificially rigged up and inflated as a result of excessive speculation and unhealthy trade practices, the spot-price prevailing on the closing day would not represent the reasonable price at which contract should be closed out. And this was precisely the case of the respondent State as the reasons which compelled it to depart from the principle of fixation on the basis of the spot-price on the closing day. We see, therefore, no sufficient ground for holding that the power conferred on the Central Government to fix the price at which contracts could be closed out is either legislatively incompetent or constitutionally invalid. What we stated earlier should suffice to show that the actual price at which the contracts were required to be settled out fixed in the impugned notification conformed to the requirement of reasonableness in Art. 19(6) and that underlying the relevant provisions of the statute.
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are all elements that necessitate regulation, and these are variable. We have not attempted to be exhaustive in naming the several factors but these are some of the characteristics which call for and make possible, effective regulation. It would, therefore, follow that the commodities which would satisfy these tests or requirements can only be ascertained from time to time after enquiry and investigation. They cannot obviously be specified in a statute. It is because of these considerations and the need for expert opinion and guidance on the matter that the Act has, by its Ch. II, provided for the constitution of a Forward Markets Commission on whom has been laid the duty of advising Government on the situation as it exists from time to time and make recommendations in that regard. In our opinion, the selection of the commodity for the regulation of forward trading in it or of prohibition of such trading can only be left to the Government and the purposes for which the power is to be used and the machinery created for the investigation furnish sufficient guidance as to preclude any challenge on the ground of a violation of Art. 14. What we have just now said as regards the selection of the commodity would suffice to answer the argument regarding the selection of the time at which the notification under S. 15(1) might take place.It cannot be therefore predicated off-hand and as a matter of law that every restriction which operates with retrospective effect and affects rights obtained under the pre-existing law, is unconstitutional as obnoxious to the freedom guaranteed by sub-cls. (f) or (g) of cl. (1) of Art. 19. It might, in particular cases, even be necessary to completely efface a subsisting contract but in the present case that is not what was done but only to vary its terms so that it would be settled out at, the prices determined by the otherhold that S. 15 is constitutionally valid. It is only necessary to add that it is manifest that the restriction on trading is in the interest of the general public since the public have a vital interest in the availability of an essential commodity like gur at reasonable and relatively stable prices and the only question for determination for the application of cls. (5) or (6) of Art. 19 would the reasonableness of the measures contemplated by the law. Taking into account the machinery created in Ch. II of the Act in the way of an expert body to furnish Government with advice on such a complex problem and the functions of the committee, we are clearly of the view that the restrictions imposed by S. 15 of the Act are reasonable and pass the tests for a valid law under cls. (5) and (6) of Art.this connection we might usefully refer to the provisions ofthe Essential Commodities Act, 1955, under which Government is vested with power to determine the prices at which essential commodities may be bought or sold. Under S. 3(2) ofthe Essential Commodities Act, 1955, the Central Government is empowered by order made under the Act to provide for controlling the price at which any essential commodity may be bought and sold. The control under that enactment, as the one now under consideration, is to be exercised for ensuring that the price fixed shall be reasonable having regard to the cost of production and the general level of prices prevailing of other like commodities which are the subject of legitimate and proper trade. In the very nature of things it is not possible for the Legislature to determine beforehand the price at which a commodity may be sold or at which contracts in relation thereto might be entered into. The price must be dependent upon factors varying from time to time and cannot, therefore, be always a proper subject of legislative determination. Any fixation of prices either by naming a figure or by reference to the market price ruling on a particular date, must be productive of hardship both by reason of being mechanical an therefore out of tune with the varying factors which might obtain from time to time, as also of being liable to manipulation by unscrupulous traders as in the situation described by the Government in regard to gur futures in the passage just now extracted.30. Nor is it any defect in the Act that it dues not in so many terms lay down the principles for the fixation of the price. In view of what we have stated earlier, the only guidance which the Parliament could have given was to direct that the price fixed be reasonable taking into account the relevant factors we have enumerated earlier, and this we consider is implicit in the provision in S. 16 of the Act as much as in S. 3 of the Essential Commoditiesnormal circumstances that might have been a fair rule to adopt, but from these precedents no rule of law can be derived that a fixation of a price on any other basis is either improper, unjust or unconstitutional. It is patent that if prices are artificially rigged up and inflated as a result of excessive speculation and unhealthy trade practices, the spot-price prevailing on the closing day would not represent the reasonable price at which contract should be closed out. And this was precisely the case of the respondent State as the reasons which compelled it to depart from the principle of fixation on the basis of the spot-price on the closing day. We see, therefore, no sufficient ground for holding that the power conferred on the Central Government to fix the price at which contracts could be closed out is either legislatively incompetent or constitutionally invalid. What we stated earlier should suffice to show that the actual price at which the contracts were required to be settled out fixed in the impugned notification conformed to the requirement of reasonableness in Art. 19(6) and that underlying the relevant provisions of the statute.
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Ashok Kumar and Others Vs. Additional District Judge | that Harbans Singh was neither a party to the ejectment suit nor was any objection filed by him during the pendency of the suit alleging that he had any share in the business. The application of Harbans Singh was accordingly rejected by the District Judge on 1 2-5-73.3. Subsequently on 21-5-1973, the Rent Control Inspector reported to the Eviction Officer that the building in suit which was allotted to Keshar Singh in 1954 had fallen vacant in pursuance of the decree for ejectment obtained by the appellant. During the pendency of the suit, the original tenant, Keshar Singh had been appointed a Receiver of Hotel Waldrof but after the decree was passed, he delivered physical possession of the Hotel to the appellant-decree holder in the presence of witnesses. It appears that Harbans Singh tried to resist the delivery of possession and abused the Commissioner but to no avail.4. Thus, having failed in his attempts, to resist the delivery of possession to the appellant, Harbans Singh filed a suit (No. 47 of 1973) in the court of District Judge against the appellant and the former tenant, Keshar Singh, for setting aside the ejectment decree passed in suit No. 27 of 1972 alleging that as he had become the sole tenant, Keshar Singh ceased to be a tenant of the disputed property and the decree was wrongly passed against Keshar Singh. He also pleaded that the suit being a collusive one, the decree should be set aside. The suit filed by respondent No. 3 does not appear to have been pursued and ultimately it stood dismissed on 11-6-1975.Sometime in July 1973 the appellant by means of an application informed the Eviction Officer that the landlord had been delivered possession of the Hotel and p rayed that since the premises had fallen vacant, the same may be allotted to him. Respondent No. 3, however, on 8-11-1973 filed objections to the application of the landlord for releasing the accommodation on the allegation that he had filed a suit for setting aside the decree. The Rent Control Inspector on being asked to report the exact position submitted his report to the Eviction Officer who rejected the application filed by respondent No. 3 and by an order dated 18-11-1 974 released the property in favour of the appellant with the exception of the outhouses which were in possession of different tenants. Harbans Singh then filed an appeal on 11-4-1974 before the appellate authority challenging the order of the Eviction Officer. This appeal was admittedly time-barred. The appeal was, however, allowed by the appellate authority on the ground that the application filed by the landlord was not maintainable under s.16 of the Act as the tenant had no t been actually ejected when the application for notifying the vacancy was made. 5. There can be no doubt that the appellate authority took a wrong view of law in allowing the appeal because under the provisions of s.16(1) of the Act it was not necessary that the application for notifying the vacancy should be made only after the premises have become actually vacant. Section 16(1)(a) runs thus: 16(1) Subject to the provisions of this Act, the District Magistrate may by order-(a ) require the landlord to let any building which is or has fallen vacant or is about to fall vacant, or a part of such building but not appurtenant land alone, to any person specified in the order (to be called an allotment order). (Emphasis supplied). It is manifest that under s.16(1)(a), it is not necessary that the premises must actually become vacant before an application under s. 16 could be filed before the District Magistrate. In the inst ant case, as a decree for ejectment was under contemplation, it was open to the appellant to have moved the District Magistrate for notifying the vacancy under s.16(1) (a) of the Act. 6. We have already pointed out that the premises did fall vacant subsequently and the delivery of possession was also given to the landlord in pursuance of the decree of ejectment passed by the civil court. 7. Respondent No. 3 appears to have made a futile attempt to make confusion worse confounded by representing that the premises were not vacant when he knew full well that the delivery of possession was given to the landlord in his presence and he had later filed a suit for setting aside the decree which was dismissed. Thus, it appears from the record that respondent No. 3, Harbans Singh, never came in possession of the premises in question but tried to defeat or delay the decree passed by the civil court in favour of the appellant by various subterfuges and pretexts . However, as the appellate authority had accepted the appeal filed by respondent No. 3, the appellants were compelled to take the matter to the High Court by way of a writ petition. The High Court, however, dismissed the writ petition mainly on the g round that before notifying the vacancy, the Eviction Officer did not hear respondent No. 3. The High Court does not appear to have considered the history of the case and the various proceedings leading to the eviction of Keshar Singh and to the fact that respondent No. 3 had absolutely no claim or right to the property. At no stage could Harbans Singh prove that either he was a sub-tenant or a partner of Keshar Singh. His attempt to get the decree, passed in favour of the appellant, set aside failed.In these circumstances, therefore, there was no question of his being heard by the Eviction Officer after the possession was delivered to the landlord and the vacancy was notified. If at all, such a hearing would have been futile and would have ultimately led to the same result. In these circumstances, we are clearly of the opinion that the High Court erred in law in dismissing the writ petition and upholding the judgment of the District Judge remanding the matter to the Eviction Officer. | 1[ds]There can be no doubt that the appellate authority took a wrong view of law in allowing the appeal because under the provisions of s.16(1) of the Act it was not necessary that the application for notifying the vacancy should be made only after the premises have become actually vacantWe have already pointed out that the premises did fall vacant subsequently and the delivery of possession was also given to the landlord in pursuance of the decree of ejectment passed by the civil courtRespondent No. 3 appears to have made a futile attempt to make confusion worse confounded by representing that the premises were not vacant when he knew full well that the delivery of possession was given to the landlord in his presence and he had later filed a suit for setting aside the decree which was dismissed. Thus, it appears from the record that respondent No. 3, Harbans Singh, never came in possession of the premises in question but tried to defeat or delay the decree passed by the civil court in favour of the appellant by various subterfuges and pretexts . However, as the appellate authority had accepted the appeal filed by respondent No. 3, the appellants were compelled to take the matter to the High Court by way of a writ petition. The High Court, however, dismissed the writ petition mainly on the g round that before notifying the vacancy, the Eviction Officer did not hear respondent No. 3. The High Court does not appear to have considered the history of the case and the various proceedings leading to the eviction of Keshar Singh and to the fact that respondent No. 3 had absolutely no claim or right to the property. At no stage could Harbans Singh prove that either he was a sub-tenant or a partner of Keshar Singh. His attempt to get the decree, passed in favour of the appellant, set aside failed.In these circumstances, therefore, there was no question of his being heard by the Eviction Officer after the possession was delivered to the landlord and the vacancy was notified. If at all, such a hearing would have been futile and would have ultimately led to the same result. In these circumstances, we are clearly of the opinion that the High Court erred in law in dismissing the writ petition and upholding the judgment of the District Judge remanding the matter to the Eviction Officer. | 1 | 1,586 | 436 | ### Instruction:
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that Harbans Singh was neither a party to the ejectment suit nor was any objection filed by him during the pendency of the suit alleging that he had any share in the business. The application of Harbans Singh was accordingly rejected by the District Judge on 1 2-5-73.3. Subsequently on 21-5-1973, the Rent Control Inspector reported to the Eviction Officer that the building in suit which was allotted to Keshar Singh in 1954 had fallen vacant in pursuance of the decree for ejectment obtained by the appellant. During the pendency of the suit, the original tenant, Keshar Singh had been appointed a Receiver of Hotel Waldrof but after the decree was passed, he delivered physical possession of the Hotel to the appellant-decree holder in the presence of witnesses. It appears that Harbans Singh tried to resist the delivery of possession and abused the Commissioner but to no avail.4. Thus, having failed in his attempts, to resist the delivery of possession to the appellant, Harbans Singh filed a suit (No. 47 of 1973) in the court of District Judge against the appellant and the former tenant, Keshar Singh, for setting aside the ejectment decree passed in suit No. 27 of 1972 alleging that as he had become the sole tenant, Keshar Singh ceased to be a tenant of the disputed property and the decree was wrongly passed against Keshar Singh. He also pleaded that the suit being a collusive one, the decree should be set aside. The suit filed by respondent No. 3 does not appear to have been pursued and ultimately it stood dismissed on 11-6-1975.Sometime in July 1973 the appellant by means of an application informed the Eviction Officer that the landlord had been delivered possession of the Hotel and p rayed that since the premises had fallen vacant, the same may be allotted to him. Respondent No. 3, however, on 8-11-1973 filed objections to the application of the landlord for releasing the accommodation on the allegation that he had filed a suit for setting aside the decree. The Rent Control Inspector on being asked to report the exact position submitted his report to the Eviction Officer who rejected the application filed by respondent No. 3 and by an order dated 18-11-1 974 released the property in favour of the appellant with the exception of the outhouses which were in possession of different tenants. Harbans Singh then filed an appeal on 11-4-1974 before the appellate authority challenging the order of the Eviction Officer. This appeal was admittedly time-barred. The appeal was, however, allowed by the appellate authority on the ground that the application filed by the landlord was not maintainable under s.16 of the Act as the tenant had no t been actually ejected when the application for notifying the vacancy was made. 5. There can be no doubt that the appellate authority took a wrong view of law in allowing the appeal because under the provisions of s.16(1) of the Act it was not necessary that the application for notifying the vacancy should be made only after the premises have become actually vacant. Section 16(1)(a) runs thus: 16(1) Subject to the provisions of this Act, the District Magistrate may by order-(a ) require the landlord to let any building which is or has fallen vacant or is about to fall vacant, or a part of such building but not appurtenant land alone, to any person specified in the order (to be called an allotment order). (Emphasis supplied). It is manifest that under s.16(1)(a), it is not necessary that the premises must actually become vacant before an application under s. 16 could be filed before the District Magistrate. In the inst ant case, as a decree for ejectment was under contemplation, it was open to the appellant to have moved the District Magistrate for notifying the vacancy under s.16(1) (a) of the Act. 6. We have already pointed out that the premises did fall vacant subsequently and the delivery of possession was also given to the landlord in pursuance of the decree of ejectment passed by the civil court. 7. Respondent No. 3 appears to have made a futile attempt to make confusion worse confounded by representing that the premises were not vacant when he knew full well that the delivery of possession was given to the landlord in his presence and he had later filed a suit for setting aside the decree which was dismissed. Thus, it appears from the record that respondent No. 3, Harbans Singh, never came in possession of the premises in question but tried to defeat or delay the decree passed by the civil court in favour of the appellant by various subterfuges and pretexts . However, as the appellate authority had accepted the appeal filed by respondent No. 3, the appellants were compelled to take the matter to the High Court by way of a writ petition. The High Court, however, dismissed the writ petition mainly on the g round that before notifying the vacancy, the Eviction Officer did not hear respondent No. 3. The High Court does not appear to have considered the history of the case and the various proceedings leading to the eviction of Keshar Singh and to the fact that respondent No. 3 had absolutely no claim or right to the property. At no stage could Harbans Singh prove that either he was a sub-tenant or a partner of Keshar Singh. His attempt to get the decree, passed in favour of the appellant, set aside failed.In these circumstances, therefore, there was no question of his being heard by the Eviction Officer after the possession was delivered to the landlord and the vacancy was notified. If at all, such a hearing would have been futile and would have ultimately led to the same result. In these circumstances, we are clearly of the opinion that the High Court erred in law in dismissing the writ petition and upholding the judgment of the District Judge remanding the matter to the Eviction Officer.
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There can be no doubt that the appellate authority took a wrong view of law in allowing the appeal because under the provisions of s.16(1) of the Act it was not necessary that the application for notifying the vacancy should be made only after the premises have become actually vacantWe have already pointed out that the premises did fall vacant subsequently and the delivery of possession was also given to the landlord in pursuance of the decree of ejectment passed by the civil courtRespondent No. 3 appears to have made a futile attempt to make confusion worse confounded by representing that the premises were not vacant when he knew full well that the delivery of possession was given to the landlord in his presence and he had later filed a suit for setting aside the decree which was dismissed. Thus, it appears from the record that respondent No. 3, Harbans Singh, never came in possession of the premises in question but tried to defeat or delay the decree passed by the civil court in favour of the appellant by various subterfuges and pretexts . However, as the appellate authority had accepted the appeal filed by respondent No. 3, the appellants were compelled to take the matter to the High Court by way of a writ petition. The High Court, however, dismissed the writ petition mainly on the g round that before notifying the vacancy, the Eviction Officer did not hear respondent No. 3. The High Court does not appear to have considered the history of the case and the various proceedings leading to the eviction of Keshar Singh and to the fact that respondent No. 3 had absolutely no claim or right to the property. At no stage could Harbans Singh prove that either he was a sub-tenant or a partner of Keshar Singh. His attempt to get the decree, passed in favour of the appellant, set aside failed.In these circumstances, therefore, there was no question of his being heard by the Eviction Officer after the possession was delivered to the landlord and the vacancy was notified. If at all, such a hearing would have been futile and would have ultimately led to the same result. In these circumstances, we are clearly of the opinion that the High Court erred in law in dismissing the writ petition and upholding the judgment of the District Judge remanding the matter to the Eviction Officer.
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Fateh Chand Vs. Balkishan Das | plaintiff failed to prove the loss suffered by him in consequence of the breach of the contract committed by the defendant and we are unable to find any principle on which compensation equal to ten percent of the agreed price could be awarded to the plaintiff. The plaintiff has been allowed Rs.1,000/- which was the earnest money as part of the damages. Besides he had use of the remaining sum of Rs.24,000/- and we can rightly presume that he must have been deriving advantage from that amount throughout this period. In the absence therefore of any proof of damage arising from the breach of the contract, we are of opinion that the amount of Rs.1,000/- (earnest money) which has been forfeited, and the advantage that the plaintiff must have derived from the possession of the remaining sum of Rs. 24,000/- during all this period would be sufficient compensation to him. It may be added that the Plaintiff has separately claimed mesne profits for being kept out of possession for which he has got a decree and therefore the fact that the plaintiff was out of possession cannot be taken into account in determining damages for this purpose. The decree passed by the High Court awarding Rs. 11,250/- as damages to the plaintiff must therefore be set aside. 19. The other question which remains to be determined relates to the amount of mesne profits which the plaintiff is entitled to receive from the defendant who kept the plaintiff out of the property after the bargain had fallen through. It is common ground that the defendant is liable for retaining possession to pay compensation from June 1, 1949 till the date of the suit and thereafter under O. 20 R. 12(c) C.P. Code till the date on which possession was delivered. The trial Court assessed compensation at the rate of Rs.140/- per mensem. The High Court awarded compensation at the rate of Rs. 265/- per mensem. In arriving at this rate the High Court adopted a highly artificial method. The High Court observed that even though the agreement for sale of the property was for a consideration of Rs. 1,12,500/- the plaintiff had purchased the property in 1947 for Rs.63,000/- and that at the date of the suit that amount could be regarded as the value for which the property could be sold at any time. The High Court then thought that the proper rate of compensation for use and occupation of the house by the defendant when he refused to give up possession after failing to complete the contract should have some relation to the value of the property and not to the price agreed as sale price between the parties, and computing damages at the rate of five per cent on the value of the property they held that Rs.3,150/was the annual loss suffered by the plaintiff by being kept out of possession, and on that footing awarded mesne profits at the rate of Rs.265/- per mensem prior to the date of the suit and thereafter. The plaintiff is undoubtedly entitled to mesne profits from the defendant, and mesne profits as defined in S.2(12) of the Code of Civil Procedure are profits which the person in wrongful possession of property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but do not include profits due to improvements made by the person in wrongful possession. The normal measure of mesne profits is therefore the value of the user of land to the person in wrongful possession. 20. The assessment made by the High Court of compensation at the rate of five per cent of what they regarded as the fair value of the property is based not on the value of the user, but on an estimated return on the value of the property cannot be sustained. The Attorney-General contended that the premises were governed by the Delhi and Ajmer-Merwara Rent Control Act XIX of 1941 and nothing more than the standard rent of the property assessed under that Act could be awarded to the plaintiff as damages. Normally a person in wrongful possession of immovable property has to pay compensation computed on thee basis of profits he actually received or with ordinary diligence might have received. It is not necessary to consider in the present case whether mesne profits at a rate exceeding the rate of standard rent of the house may be awarded, for there is no evidence as to what the standard rent of the house was.From the evidence on the record it appears that a tenant was in occupation for a long time before 1947 of the house in dispute in this appeal and another house for an aggregate rent of Rs.180/- per mensem, and that after the house in dispute was sold, the plaintiff received rent from that tenant at the rate of Rs.80/- per mensem, and the vendor of the plaintiff at the rate of Rs.106/- per mensem. But this is not evidence of standard rent within the meaning of Delhi and Ajmer-Merwara Rent control Act, XIX of 1947. 21. The Subordinate Judge awarded mesne profits at the rate of Rs. 140/- per mensem and unless it is shown by the defendant that that was excessive we would not be justified in interfering with the amount awarded by the Subordinate Judge. A slight modification, however, needs to be made. The plaintiff is not only entitled to mesne profits at the monthly rate fixed by the Trial Court, but is also entitled to interest on such profits: vide S. 2 (12) of the Code of Civil Procedure. We, therefore, direct that the mesne profits be computed at the rate of Rs. 140/- per mensem from June 1, 1949 till the date on which possession was delivered to the plaintiff (such period not exceeding three years from the date of decree) together with interest at the rate of six per cent on the amount accruing due month after month. 22. | 0[ds]we agree with the conclusion of the High Court that the defendant and not the plaintiff committed breach of the contractWe agree with the Attorney-General that the amount of Rs.24,000/- was not of the nature of earnest money. The agreement expressly provided for payment of Rs.1,000/- as earnest money, and that amount was paid by the defendant. The amount of Rs.24,000/- was to be paid when vacant possession of the land and building was delivered, and it was expressly referred to as out of the sale price. If this amount was also to be regarded as earnest money, there was no reason why the parties would not have so named it in the agreement of sale. We are unable to agree with the High Court that this amount was paid as security for due performance of the contract. No such case appears to have been made out in the plaint and the finding of the High Court on that point is based on no evidence. It cannot be assumed that because there is a stipulation for forfeiture the amount paid must bear the character of a deposit for due performance of the contractSection 74 of the Indian Contract Act deals with the measure of damages in two classes of cases (i) where the contract names a sum to be paid in case of breach and (ii) where the contract contains any other stipulation by way of penalty. We are in the present case not concerned to decide whether a contract containing a covenant of forfeiture of deposit for due performance of a contract falls within the first class. The measure of damages in the case of breach of a stipulation by way of penalty is by S. 74 reasonable compensation not exceeding the penalty stipulated for.In assessing damages the Court has, subject to the limit of the penalty stipulated, jurisdiction to award such compensation as it deems reasonable having regard to all the circumstances of the case. Jurisdiction of the Court to award compensation in case of breach of contract is unqualified except as to the maximum stipulated, but compensation has to be reasonable, and that imposes upon the Court duty to award compensation according to settled principles. The section undoubtedly says that the aggrieved party is entitled to receive compensation from the party who has broken the contract whether or not actual damage or loss is proved to have been caused by the breach. Thereby it merely dispenses with proof of actual loss or damage; it does not justify the award of compensation when in consequence of the breach no legal injury at all has resulted because compensation for breach of contract can be awarded to make good loss or damage which naturally arose in the usual course of things, or which the parties knew when they made the contract, to be likely to result from the breachThe expression if the contract contains any other stipulation by way of penalty widens the operation of the section so as to make it applicable to all stipulations by way of penalty, whether the stipulation is to pay an amount of money, or is of another character, as, for example, providing for forfeiture of money already paid. There is nothing in the expression which implies that the stipulation must be one for rendering something after the contract is broken. There is no ground for holding that the expression contract contains any other stipulation by way of penalty is limited to cases of stipulation in the nature of an agreement to pay money or deliver property on breach and does not comprehend covenants under which amounts paid or property delivered under the contract, which by the terms of the contract expressly or by clear implication are liable to be forfeitedThere is no evidence that any loss was suffered by the plaintiff in consequence of the default by the defendant, save as to the loss suffered by him by being kept out of possession of the property. There is no evidence that the property had depreciated in value since the date of the contract provided; nor was there evidence that any other special damage had resulted. The contract provided for forfeiture of Rs.25,000/consisting of Rs.1,000/- paid as earnest money and Rs.24,000/- paid as part of the purchase price. The defendant has conceded that the plaintiff was entitled to forfeit the amount of Rs.1,000/- which was paid as earnest money. We cannot however agree with the High Court 13 per cent of the price may be regarded as that reasonable compensation in relation to the value of the contract as a whole, as that in our opinion is assessed on an arbitrary assumption. The plaintiff failed to prove the loss suffered by him in consequence of the breach of the contract committed by the defendant and we are unable to find any principle on which compensation equal to ten percent of the agreed price could be awarded to the plaintiff. The plaintiff has been allowed Rs.1,000/- which was the earnest money as part of the damages. Besides he had use of the remaining sum of Rs.24,000/- and we can rightly presume that he must have been deriving advantage from that amount throughout this period. In the absence therefore of any proof of damage arising from the breach of the contract, we are of opinion that the amount of Rs.1,000/- (earnest money) which has been forfeited, and the advantage that the plaintiff must have derived from the possession of the remaining sum of Rs. 24,000/- during all this period would be sufficient compensation to him. It may be added that the Plaintiff has separately claimed mesne profits for being kept out of possession for which he has got a decree and therefore the fact that the plaintiff was out of possession cannot be taken into account in determining damages for this purpose. The decree passed by the High Court awarding Rs. 11,250/- as damages to the plaintiff must therefore be set asideIt is not necessary to consider in the present case whether mesne profits at a rate exceeding the rate of standard rent of the house may be awarded, for there is no evidence as to what the standard rent of the house was.From the evidence on the record it appears that a tenant was in occupation for a long time before 1947 of the house in dispute in this appeal and another house for an aggregate rent of Rs.180/- per mensem, and that after the house in dispute was sold, the plaintiff received rent from that tenant at the rate of Rs.80/- per mensem, and the vendor of the plaintiff at the rate of Rs.106/- per mensem. But this is not evidence of standard rent within the meaning of Delhi and Ajmer-Merwara Rent control Act, XIX of 1947The Subordinate Judge awarded mesne profits at the rate of Rs. 140/- per mensem and unless it is shown by the defendant that that was excessive we would not be justified in interfering with the amount awarded by the Subordinate Judge. A slight modification, however, needs to be made. The plaintiff is not only entitled to mesne profits at the monthly rate fixed by the Trial Court, but is also entitled to interest on such profits: vide S. 2 (12) of the Code of Civil Procedure. We, therefore, direct that the mesne profits be computed at the rate of Rs. 140/- per mensem from June 1, 1949 till the date on which possession was delivered to the plaintiff (such period not exceeding three years from the date of decree) together with interest at the rate of six per cent on the amount accruing due month after month. | 0 | 6,093 | 1,361 | ### Instruction:
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plaintiff failed to prove the loss suffered by him in consequence of the breach of the contract committed by the defendant and we are unable to find any principle on which compensation equal to ten percent of the agreed price could be awarded to the plaintiff. The plaintiff has been allowed Rs.1,000/- which was the earnest money as part of the damages. Besides he had use of the remaining sum of Rs.24,000/- and we can rightly presume that he must have been deriving advantage from that amount throughout this period. In the absence therefore of any proof of damage arising from the breach of the contract, we are of opinion that the amount of Rs.1,000/- (earnest money) which has been forfeited, and the advantage that the plaintiff must have derived from the possession of the remaining sum of Rs. 24,000/- during all this period would be sufficient compensation to him. It may be added that the Plaintiff has separately claimed mesne profits for being kept out of possession for which he has got a decree and therefore the fact that the plaintiff was out of possession cannot be taken into account in determining damages for this purpose. The decree passed by the High Court awarding Rs. 11,250/- as damages to the plaintiff must therefore be set aside. 19. The other question which remains to be determined relates to the amount of mesne profits which the plaintiff is entitled to receive from the defendant who kept the plaintiff out of the property after the bargain had fallen through. It is common ground that the defendant is liable for retaining possession to pay compensation from June 1, 1949 till the date of the suit and thereafter under O. 20 R. 12(c) C.P. Code till the date on which possession was delivered. The trial Court assessed compensation at the rate of Rs.140/- per mensem. The High Court awarded compensation at the rate of Rs. 265/- per mensem. In arriving at this rate the High Court adopted a highly artificial method. The High Court observed that even though the agreement for sale of the property was for a consideration of Rs. 1,12,500/- the plaintiff had purchased the property in 1947 for Rs.63,000/- and that at the date of the suit that amount could be regarded as the value for which the property could be sold at any time. The High Court then thought that the proper rate of compensation for use and occupation of the house by the defendant when he refused to give up possession after failing to complete the contract should have some relation to the value of the property and not to the price agreed as sale price between the parties, and computing damages at the rate of five per cent on the value of the property they held that Rs.3,150/was the annual loss suffered by the plaintiff by being kept out of possession, and on that footing awarded mesne profits at the rate of Rs.265/- per mensem prior to the date of the suit and thereafter. The plaintiff is undoubtedly entitled to mesne profits from the defendant, and mesne profits as defined in S.2(12) of the Code of Civil Procedure are profits which the person in wrongful possession of property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but do not include profits due to improvements made by the person in wrongful possession. The normal measure of mesne profits is therefore the value of the user of land to the person in wrongful possession. 20. The assessment made by the High Court of compensation at the rate of five per cent of what they regarded as the fair value of the property is based not on the value of the user, but on an estimated return on the value of the property cannot be sustained. The Attorney-General contended that the premises were governed by the Delhi and Ajmer-Merwara Rent Control Act XIX of 1941 and nothing more than the standard rent of the property assessed under that Act could be awarded to the plaintiff as damages. Normally a person in wrongful possession of immovable property has to pay compensation computed on thee basis of profits he actually received or with ordinary diligence might have received. It is not necessary to consider in the present case whether mesne profits at a rate exceeding the rate of standard rent of the house may be awarded, for there is no evidence as to what the standard rent of the house was.From the evidence on the record it appears that a tenant was in occupation for a long time before 1947 of the house in dispute in this appeal and another house for an aggregate rent of Rs.180/- per mensem, and that after the house in dispute was sold, the plaintiff received rent from that tenant at the rate of Rs.80/- per mensem, and the vendor of the plaintiff at the rate of Rs.106/- per mensem. But this is not evidence of standard rent within the meaning of Delhi and Ajmer-Merwara Rent control Act, XIX of 1947. 21. The Subordinate Judge awarded mesne profits at the rate of Rs. 140/- per mensem and unless it is shown by the defendant that that was excessive we would not be justified in interfering with the amount awarded by the Subordinate Judge. A slight modification, however, needs to be made. The plaintiff is not only entitled to mesne profits at the monthly rate fixed by the Trial Court, but is also entitled to interest on such profits: vide S. 2 (12) of the Code of Civil Procedure. We, therefore, direct that the mesne profits be computed at the rate of Rs. 140/- per mensem from June 1, 1949 till the date on which possession was delivered to the plaintiff (such period not exceeding three years from the date of decree) together with interest at the rate of six per cent on the amount accruing due month after month. 22.
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stipulation by way of penalty is by S. 74 reasonable compensation not exceeding the penalty stipulated for.In assessing damages the Court has, subject to the limit of the penalty stipulated, jurisdiction to award such compensation as it deems reasonable having regard to all the circumstances of the case. Jurisdiction of the Court to award compensation in case of breach of contract is unqualified except as to the maximum stipulated, but compensation has to be reasonable, and that imposes upon the Court duty to award compensation according to settled principles. The section undoubtedly says that the aggrieved party is entitled to receive compensation from the party who has broken the contract whether or not actual damage or loss is proved to have been caused by the breach. Thereby it merely dispenses with proof of actual loss or damage; it does not justify the award of compensation when in consequence of the breach no legal injury at all has resulted because compensation for breach of contract can be awarded to make good loss or damage which naturally arose in the usual course of things, or which the parties knew when they made the contract, to be likely to result from the breachThe expression if the contract contains any other stipulation by way of penalty widens the operation of the section so as to make it applicable to all stipulations by way of penalty, whether the stipulation is to pay an amount of money, or is of another character, as, for example, providing for forfeiture of money already paid. There is nothing in the expression which implies that the stipulation must be one for rendering something after the contract is broken. There is no ground for holding that the expression contract contains any other stipulation by way of penalty is limited to cases of stipulation in the nature of an agreement to pay money or deliver property on breach and does not comprehend covenants under which amounts paid or property delivered under the contract, which by the terms of the contract expressly or by clear implication are liable to be forfeitedThere is no evidence that any loss was suffered by the plaintiff in consequence of the default by the defendant, save as to the loss suffered by him by being kept out of possession of the property. There is no evidence that the property had depreciated in value since the date of the contract provided; nor was there evidence that any other special damage had resulted. The contract provided for forfeiture of Rs.25,000/consisting of Rs.1,000/- paid as earnest money and Rs.24,000/- paid as part of the purchase price. The defendant has conceded that the plaintiff was entitled to forfeit the amount of Rs.1,000/- which was paid as earnest money. We cannot however agree with the High Court 13 per cent of the price may be regarded as that reasonable compensation in relation to the value of the contract as a whole, as that in our opinion is assessed on an arbitrary assumption. The plaintiff failed to prove the loss suffered by him in consequence of the breach of the contract committed by the defendant and we are unable to find any principle on which compensation equal to ten percent of the agreed price could be awarded to the plaintiff. The plaintiff has been allowed Rs.1,000/- which was the earnest money as part of the damages. Besides he had use of the remaining sum of Rs.24,000/- and we can rightly presume that he must have been deriving advantage from that amount throughout this period. In the absence therefore of any proof of damage arising from the breach of the contract, we are of opinion that the amount of Rs.1,000/- (earnest money) which has been forfeited, and the advantage that the plaintiff must have derived from the possession of the remaining sum of Rs. 24,000/- during all this period would be sufficient compensation to him. It may be added that the Plaintiff has separately claimed mesne profits for being kept out of possession for which he has got a decree and therefore the fact that the plaintiff was out of possession cannot be taken into account in determining damages for this purpose. The decree passed by the High Court awarding Rs. 11,250/- as damages to the plaintiff must therefore be set asideIt is not necessary to consider in the present case whether mesne profits at a rate exceeding the rate of standard rent of the house may be awarded, for there is no evidence as to what the standard rent of the house was.From the evidence on the record it appears that a tenant was in occupation for a long time before 1947 of the house in dispute in this appeal and another house for an aggregate rent of Rs.180/- per mensem, and that after the house in dispute was sold, the plaintiff received rent from that tenant at the rate of Rs.80/- per mensem, and the vendor of the plaintiff at the rate of Rs.106/- per mensem. But this is not evidence of standard rent within the meaning of Delhi and Ajmer-Merwara Rent control Act, XIX of 1947The Subordinate Judge awarded mesne profits at the rate of Rs. 140/- per mensem and unless it is shown by the defendant that that was excessive we would not be justified in interfering with the amount awarded by the Subordinate Judge. A slight modification, however, needs to be made. The plaintiff is not only entitled to mesne profits at the monthly rate fixed by the Trial Court, but is also entitled to interest on such profits: vide S. 2 (12) of the Code of Civil Procedure. We, therefore, direct that the mesne profits be computed at the rate of Rs. 140/- per mensem from June 1, 1949 till the date on which possession was delivered to the plaintiff (such period not exceeding three years from the date of decree) together with interest at the rate of six per cent on the amount accruing due month after month.
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B.S. Yadav and Others Etc Vs. State of Haryana and Others Etc | open to him to give retrospective operation to the rules made under that provision. But the date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case. No such nexus is shown in the present case on behalf of the State Government. On the contrary, it appears to us that the retrospective effect was given to the rules from April 9, 1976 for the mere reason that on August 25, 1976 the High Court had issued a notification fixing seniority of the promotees and direct recruits appointed to the Superior Judicial Service of Punjab. The notification issued by the Governor on December 31, 1976, will, therefore, operate on future appointments or promotions made after that date and not on appointments or promotions made before that date. The seniority of all officers appointed or promoted to the Superior Judicial Service, Punjab, before December 31, 1976 will be determined by the High Court according to the criterion of the dates of confirmation, without applying the rule of rotation. The seniority of those promoted or appointed after December 31, 1976 will be determined in accordance with the rules promulgated under the notification of that date. Insofar as we see, judicial officers from Serial Nos. 1 to 36 mentioned in Annexure ‘P-I’ to the Punjab writ petition, that is, beginning with Shri J.S Chatha and ending with Shri Hardev Singh were appointed or promoted prior to December 31, 1976. Those from Serial No. 37 to Serial No. 43, that is beginning with Shri G.S Kalra and ending with Shri H.L Garg, were appointed or promoted after December 31, 1976. The validity of the notification dated December 31, 1976 was not seriously challenged before us, apart from its retrospectivity. We do not also see any constitutional or legal objection to the test of continuous officiation introduced thereby.79. Insofar as the Haryana writ petitions are concerned, they involve a question of seniority really between two officers only, namely, Shri B.S Yadav, who is a promotee and Shri N.S Rao, who is a direct recruit. The other two promotees, namely, petitioners 2 and 3, have been compulsorily retired during the pendency of the writ petitions in this Court. Rule 12, which is now in force in Haryana, is similar to Rule 12 which was in force in Punjab prior to its amendment on December 31, 1976. Rule 12, as it originally existed, was amended by the Governor of Haryana, on April 21, 1972 with retrospective effect from April 1, 1970. However, on September 2, 1977 the Governor superseded that amendment, again with effect from April 1, 1970, and restored the rule of seniority as it existed originally in the 1963 Rules. In Haryana, therefore, the seniority of the members of the Superior Judicial Service will be determined with reference to the dates of confirmation, without applying the rule of rotation.90. We must express our concern at the manner in which the Rules of the Superior Judicial Service have been amended by the Governor of Punjab and, particularly, by the Governor of Haryana. In Punjab, the High Court was never consulted on the question whether the amendments made on December 31, 1976 should be given retrospective effect and, if so, from what date. The amendments were made despite the opposition of the High Court. In Haryana, the amendment of April 21, 1972 was made just in order to spite a single judicial officer who is a direct recruit. Fortunately, that amendment was withdrawn by the successor Government on September 2, 1977. A long retrospective effect was given to that amendment from April 1, 1970 because the amendment of April 21, 1972 was given retrospective effect from April 1, 1970 and that amendment had to be effectively superseded. We do hope that the State Governments will apply their mind more closely to the need to amend the Service Rules of the Superior Judiciary and that the rules will not be tinkered with too often. It should also be realised that giving retrospective effect to the rules creates frustration and discontentment since the just expectations of the officers are falsified. Settled seniority is thereby unsettled, giving rise to long drawn-out litigation between the promotees and direct appointees. That breeds indiscipline and draws the High Court into the arena, which is to be deprecated.91. Punjab and Haryana have a peculiar problem since they have a common High Court. But they are blessed, not cursed, with a common High Court. Today we find the strange spectacle of the High Court being called upon to determine the seniority of officers in one State by one test and that of officers in the other State by an opposite test. In Punjab, continuous officiation on a post in the service is the criterion of seniority. In Haryana, the date of confirmation is the governing factor. Can the two Governors not come together and take a joint decision applying a uniform test of seniority of their judicial officers who are under one common High Court? And though that is not the requirement of the proviso to Article 309 of the Constitution, we hope that whatever amendments are going to be made hereafter to the Rules will be made in consultation with the High Court. Nothing will be lost thereby and there is so much to gain : Goodwill, expert advice and the benefit of the experience of a body which has to administer the rules since the control over the subordinate courts is vested in it by Article 235. It is sad that the promotees and direct recruits have to dissipate their time and energy in litigation which they can ill-afford and which arises largely because of the lack of coordination between the High Court and the State Governments. It is time enough now to turn a new leaf. | 1[ds]But the point of the matter is that there has been no unconcerned acquiescence by High Courts and judicial officers in rules framed by the Governors. In Haryana itself, Respondent 3, Shri N.S Rao, challenged the Governors power to override the order of his confirmation which was passed by the High Court. And he won. Whenever there was the semblance of a justification for doing so, either one or the other party motivated by personal interest or out of the broader consideration that the High Courts controlling jurisdiction must remain inviolate has challenged the rules framed by the Governor as being excessive. But there is a good reason why the rules of seniority framed by the Governor have been acquiesced in, all over the country, over all these years. The reason is asnot the High Court because, there is no power in the High Court to pass a law, though rules made by the High Court in the exercise of power conferred upon it in that behalf may have the force of law. There is a distinction between the power to pass a law and the power to make rules, which by law, have the force of law. Besides,which the second part of Article 235 speaks of, is law made by the legislature because, if it were not so, there was no purpose in saying that the High Courts power of control will not be construed as taking away certain rights of certain persons under a law regulating their conditions of service. It could not have been possibly intended to be provided that the High Courts power of control will be subject to the conditions of service prescribed by it. The clear meaning, therefore, of the second part of Article 235 is that the power of control vested in the High Court by the first part will not deprive a judicial officer of the rights conferred upon him by a law made by the legislature regulating his conditions of service.42. Article 235 does not confer upon the High Courts the power to make rules relating to conditions of service of judicial officers attached to District Courts and the courts subordinate thereto. Whenever it was intended to confer on any authority the power to make any special provisions or rules, including rules relating to conditions of service, the Constitution has stated so in expressthis particular provision before them, the framers of the Constitution would not have failed to incorporate a similarif it was intended that the High Courts should have the power to make rules regulating the conditions of service of judicial officers attached to District Courts and courts subordinate309 furnishes the answer. It provides that Acts of the appropriate legislature may regulate the recruitment and conditions of service of persons appointed to posts in connection with the affairs of the union or of any State. Article 246(3), read with Entry 41 in List II of the Seventh Schedule, confers upon the State legislatures the power to pass laws with respect towhich must include the judicial services of the State. The power of control vested in the High Court by Article 235 is thus expressly, by the terms of that Article itself, made subject to the law which the State legislature may pass for regulating the recruitment and service conditions of judicial officers of the State. The power to pass such a law was evidently not considered by the Constitution-makers as an encroachment on theof the High Court under the first part of Article 235. The control over the District Courts and subordinate courts is vested in the High Court in order to safeguard the independence of the judiciary. It is the High Court, not the executive, which possesses control over the State judiciary. But, what is important to bear in mind is that the Constitution which has taken the greatest care to preserve the independence of the judiciary did not regard the power of the State legislature to pass laws regulating the recruitment and conditions of service of judicial officers as an infringement of that independence. The mere power to pass such a law is not violative of the control vested in the High Court over the State judiciary.It is true that the power conferred by Article 309 ishe provisions of theBut it is fallacious for that reason to contend that the Governor cannot frame rules regulating the recruitment and conditions of service of the judicial officers of the State. In the first place, the power of control conferred upon High Courts by the first part of Article 235 is expressly made subject, by the second part of that Article, to laws regulating conditions of service of its judicial officers. The first part of Article 235 is, as it were, subject to a proviso which carves out an exception from the area covered by it. Secondly, the Governor, in terms equally express, is given the power by the proviso to Article 309 to frame rules on the subject. A combined reading of Articles 235 and 309 will yield the result that though the control over subordinate courts is vested in the High Court, the appropriate legislature, and until that legislature acts, the Governor of the State, has the power to make rules regulating the recruitment and the conditions of service of judicial officers of the State. The power of the legislature or of the Governor thus to legislate is subject to all otherof the Constitution like, for example. Articlesand 16. The question raised before us is primarily one of the location of the power, not of its extent. The second part of Article 235 recognises the legislative power to provide for recruitment and the conditions of service of the judicial officers of the State. The substantiveincluding its proviso, fixes the location of the power. The opening words of Article 309 limit the amplitude of that power.47. We entertain no doubt that seniority is a condition of service and an important one at that. The control vested in the High Court by the first part of Article 235 is therefore subject to any law regulating seniority as envisaged by the second part of that article. The power to make such law is vested by Article 309 in the legislature, and until it acts, in the Governor. Whether it is the legislature which passes an Act or the Governor who makes rules regulating seniority, the end product iswithin the meaning of the second part of Article 235. The legislatures of Punjab and Haryana not having passed an Act regulating seniority of the respective State judicial officers, the Governors of the two States have the power to frame rules for that purpose under the proviso to9 of theSuch rules are, of course, subject tos of the Constitution andto the provisions of anywhich the appropriate legislature may pass on the subject.48. As we have said earlier, the mere power to pass a law or to make rules having the force of law regulating seniority does not impinge upon the control vested in the High Court over the District Courts and the courts subordinate thereto by Article 235. Such law or the rules, as the case may be, can provide for general or abstract rules of seniority, leaving it to the High Court to apply them to each individual case as and when the occasion arises. The power to legislate on seniority being subject to all other provisions of the Constitution, cannot be exercised in a manner which will affect or be detrimental to the control vested in the High Court by Articleshort answer to these submissions is that the power conferred by Article 309 is a legislative, not executive, power and that the power is subject to all the provisionsof the Constitution.If despite this position, the Governors rule-making power is likely to create a magnetic field wherein the executive will be the focal point of attraction, it is not the Constitution that is to blame. As is often said, the danger to judicial independence springs more from within than from without.51. Before parting with this point, we would like to refer to a decision of this Court inState of Bihar v. Madan Mohan Prasad= 1976 3 SCR 110 ]. Sarkaria, J., speaking for the court, observed in that case that in determining the seniority of the Bihar Superior Judicial Service the High Court was bound to act in accordance with the rules validly made by the Governor under the proviso to9 of theThe judgment does not discuss the question any further which makes it unnecessary to analyse it in detail.52. For these reasons, we reject the contention that the Governor has no power to make rules of seniority of the District and Sessions Judges.Under the amendment effected in Punjab by the notification dated December 31, 1976, which is given retrospective effect from April 9, 1976,ns a permanentas well as a temporarypost in the Service.Insofar as the rule of seniority is concerned, under the aforesaid amendment the inter se seniority of the members of the Service is to be determined by the length of continuous service on a post in the Service irrespective of the date of confirmation.It may be recalled that inHigh Court of Punjab &. State ofit was held by this Court that Rule 10, insofar as it confers the power of confirmation on the Governor, is bad because the power of confirmation is a part of the control of the High Court which is vested in it by5 of theTherefore, the High Court alone had the power to confirm a District and Sessions Judge. As a result of that judgment, Respondent 3 came back into the service as a confirmed District and Sessions Judge.This apart, the application of rota system at the stage of confirmation is beset with practical difficulties. For example, if vacancies in the quota of direct recruits cannot be filled for 2 or 3 years for the not uncommon reason that direct recruits are not available, and during that period several vacancies occur in the quota of promotees who have been officiating continuously for two or three years, can the postponement of the confirmation of such promotees against vacant posts in their quota, until the direct recruits are appointed and become eligible for confirmation on completing the prescribed period of probation, be justified on any reasonable ground? Is it proper and fair to defer the confirmation of the promotees merely because direct recruits are not available at that point of time so as to enable the High Court to make confirmations from both the sources by rotation? This, precisely, is what the High Court has done by the impugned notification dated August 25, 1976 and that is the reason why it has not confirmed ten more promotees in Punjab, for whom vacancies are available within the quota of promotees.In our opinion, therefore, the High Court was not justified in applying the rule of rotation at the time of confirmation of the membersof the Superior Judicial Servicewho were appointed to that Service by promotion and by direct recruitment. In fact, we would like to remind that a special Bench of five learned Judges of theHigh Court of Punjab &had itself held on December 13, 1977 inState ofthat the rule of rota cannot be read into the rule of quota prescribed by8 of the Punjab Superior Judicial ServiceIt was observed by the Special Bench in para 14 of its judgment that a plain reading of Rule 8 shows that the intention of the framers of the rules was only to provide for quota and that no indication at all has been given that the rotational system also had to be followed at the time of confirmation or for the purpose of fixing seniority.73. In coming to this conclusion, the High Court placed reliance on the decisions of this Court in A.K Subraman and N.K Chauhan to which we have already referred. The High Court expressed its conclusion in parajudgment by saying that Rules8 and 12are independent of each other, that the rotational system cannot impliedly be read into the quota rule prescribed by Rule 8 and that the membersof the Superior Judicial Serviceare entitled to claim seniority, strictly in accordance with the provisions of Rule 12. We are unable to understand how, in the discharge of its administrative functions, the High Court could have failed to follow a judgment of its own special Bench consisting of five learned Judges. We are of the opinion that the aforesaid judgment has taken a correct view of the matter on a combined reading of RulesWe are of the opinion, on a proper interpretation of the rules, that promotees are entitled to be confirmed in the vacancies which are available within their quota of 2/3rd, whether or not 1/3rd of the vacancies are occupied by confirmed direct recruits. And similarly, direct recruits are entitled to be confirmed in vacancies which are available within their quota of 1/3rd, whether or not 2/3rd of the vacancies are occupied by confirmed promotees. What we find lacking in justification is the refusal of the High Court to confirm the promotees even if vacancies are available in their quota in which they can be confirmed merely because, by doing so, more than two promotees may have to be confirmed at one time, without the confirmation of a proportionate number of direct recruits.75. The fairness which Articles 14 and 16 postulate is that if a promotee is otherwise fit for confirmation and a vacancy falling within the quota of promotees is available in which he can be confirmed, his confirmation ought not to be postponed until a direct recruit, whether yet appointed or not, completes his period of probation and thereupon becomes eligible for confirmation. The adoption of this principle in the matter of confirmation, will not, in practice, give any undue advantage to the promotees. The facts and figures supplied by the High Court in Annexureto its counter-affidavit in Writ Petition No. 266 of 1979 show that vacancies in the quota of promotees do not generally become available before the promotees have put in two to five years service as officiating District and Sessions Judges.76. Insofar as the confirmation of Respondents 6, 7 and 8 is concerned, the facts set out by the Registrar of the High Court in his counter-affidavit do not, in our opinion, constitutech as to justify their confirmation long before they had completed the normal period of their probation. It may be recalled that they were confirmed after they had each completed a period of probation of approximately a year and four months. In the absence of exceptional circumstances justifying the reduction of their normal probationary period of two years, we find ourselves unable to uphold the order of the High Court by which these three respondents were confirmed before they were normally due for confirmation. The order is in clear violation of the guarantee of equal opportunity, by which the petitioners are prejudiced, and must for that reason be set aside.77. The High Court will be at liberty now to confirm them with effect from the date or dates on which they completed their normal period of probation, to the satisfaction of the High Court. This is apart from the question as to whether the High Court can exercise the power which was conferred by the proviso to Rule 10(1) on the Governor. The power conferred by the proviso on the Governor is ex facie bad because such a power directly impinges upon the control vested in the High Court by5 of theIf at all any authority could exercise such a power, it is the High Court and not the Governor. We are assuming for the limited purpose of these petitions that the High Court may, in exceptional circumstances, reduce the period of probation of a direct recruit. The rules must now be understood to mean that the High Court and not the Governor has the power of confirmation, that the normal period of probation of direct recruits is two years and that unless there are exceptional circumstances attaching to each individual case, a direct recruit cannot be confirmed from a date earlier than the date on which he has satisfactorily completed his probation of two years. The High Court is not free to fix any period of probation as it likes or to reduce the period of two years at its will and pleasure.78. The amended Rule 12, as in force in Punjab, lays down the length of continuous service in a cadre post as the guiding criterion for fixing seniority. That rule was notified by the Governor on December 31, 1976 and was given retrospective effect from April 9, 1976. Since the Governor exercises a legislative power under the proviso to9 of theit is open to him to give retrospective operation to the rules made under that provision. But the date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case. No such nexus is shown in the present case on behalf of the State Government. On the contrary, it appears to us that the retrospective effect was given to the rules from April 9, 1976 for the mere reason that on August 25, 1976 the High Court had issued a notification fixing seniority of the promotees and direct recruits appointed to the Superior Judicial Service of Punjab. The notification issued by the Governor on December 31, 1976, will, therefore, operate on future appointments or promotions made after that date and not on appointments or promotions made before that date. The seniority of all officers appointed or promoted to the Superior Judicial Service, Punjab, before December 31, 1976 will be determined by the High Court according to the criterion of the dates of confirmation, without applying the rule of rotation. The seniority of those promoted or appointed after December 31, 1976 will be determined in accordance with the rules promulgated under the notification of that date. Insofar as we see, judicial officers from Serial Nos. 1 to 36 mentioned in Annexureto the Punjab writ petition, that is, beginning with Shri J.S Chatha and ending with Shri Hardev Singh were appointed or promoted prior to December 31, 1976. Those from Serial No. 37 to Serial No. 43, that is beginning with Shri G.S Kalra and ending with Shri H.L Garg, were appointed or promoted after December 31, 1976. The validity of the notification dated December 31, 1976 was not seriously challenged before us, apart from its retrospectivity. We do not also see any constitutional or legal objection to the test of continuous officiation introduced thereby.79. Insofar as the Haryana writ petitions are concerned, they involve a question of seniority really between two officers only, namely, Shri B.S Yadav, who is a promotee and Shri N.S Rao, who is a direct recruit. The other two promotees, namely, petitioners 2 and 3, have been compulsorily retired during the pendency of the writ petitions in this Court. Rule 12, which is now in force in Haryana, is similar to Rule 12 which was in force in Punjab prior to its amendment on Decemberas it originally existed, was amended by the Governor of Haryana, on April 21, 1972 with retrospective effect from April 1, 1970. However, on September 2, 1977 the Governor superseded that amendment, again with effect from April 1, 1970, and restored the rule of seniority as it existed originally in the 1963 Rules. In Haryana, therefore, the seniority of the membersof the Superior Judicial Servicewill be determined with reference to the dates of confirmation, without applying the rule of rotation.90. We must express our concern at the manner in which the Rulesof the Superior Judicial Servicehave been amended by the Governor of Punjab and, particularly, by the Governor of Haryana. In Punjab, the High Court was never consulted on the question whether the amendments made on December 31, 1976 should be given retrospective effect and, if so, from what date. The amendments were made despite the opposition of the High Court. In Haryana, the amendment of April 21, 1972 was made just in order to spite a single judicial officer who is a direct recruit. Fortunately, that amendment was withdrawn by the successor Government on September 2, 1977. A long retrospective effect was given to that amendment from April 1, 1970 because the amendment of April 21, 1972 was given retrospective effect from April 1, 1970 and that amendment had to be effectively superseded. We do hope that the State Governments will apply their mind more closely to the need to amend the Service Rules of the Superior Judiciary and that the rules will not be tinkered with too often. It should also be realised that giving retrospective effect to the rules creates frustration and discontentment since the just expectations of the officers are falsified. Settled seniority is thereby unsettled, giving rise to long drawn-out litigation between the promotees and direct appointees. That breeds indiscipline and draws the High Court into the arena, which is to be deprecated.91. Punjab and Haryana have a peculiar problem since they have a common High Court. But they are blessed, not cursed, with a common High Court. Today we find the strange spectacle of the High Court being called upon to determine the seniority of officers in one State by one test and that of officers in the other State by an opposite test. In Punjab, continuous officiation on a post in the service is the criterion of seniority. In Haryana, the date of confirmation is the governing factor. Can the two Governors not come together and take a joint decision applying a uniform test of seniority of their judicial officers who are under one common High Court? And though that is not the requirement of the proviso to9 of thewe hope that whatever amendments are going to be made hereafter to the Rules will be made in consultation with the High Court. Nothing will be lost thereby and there is so much to gain : Goodwill, expert advice and the benefit of the experience of a body which has to administer the rules since the control over the subordinate courts is vested in it by Article 235. It is sad that the promotees and direct recruits have to dissipate their time and energy in litigation which they can ill-afford and which arises largely because of the lack of coordination between the High Court and the State Governments. It is time enough now to turn a new leaf. | 1 | 20,202 | 4,091 | ### Instruction:
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open to him to give retrospective operation to the rules made under that provision. But the date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case. No such nexus is shown in the present case on behalf of the State Government. On the contrary, it appears to us that the retrospective effect was given to the rules from April 9, 1976 for the mere reason that on August 25, 1976 the High Court had issued a notification fixing seniority of the promotees and direct recruits appointed to the Superior Judicial Service of Punjab. The notification issued by the Governor on December 31, 1976, will, therefore, operate on future appointments or promotions made after that date and not on appointments or promotions made before that date. The seniority of all officers appointed or promoted to the Superior Judicial Service, Punjab, before December 31, 1976 will be determined by the High Court according to the criterion of the dates of confirmation, without applying the rule of rotation. The seniority of those promoted or appointed after December 31, 1976 will be determined in accordance with the rules promulgated under the notification of that date. Insofar as we see, judicial officers from Serial Nos. 1 to 36 mentioned in Annexure ‘P-I’ to the Punjab writ petition, that is, beginning with Shri J.S Chatha and ending with Shri Hardev Singh were appointed or promoted prior to December 31, 1976. Those from Serial No. 37 to Serial No. 43, that is beginning with Shri G.S Kalra and ending with Shri H.L Garg, were appointed or promoted after December 31, 1976. The validity of the notification dated December 31, 1976 was not seriously challenged before us, apart from its retrospectivity. We do not also see any constitutional or legal objection to the test of continuous officiation introduced thereby.79. Insofar as the Haryana writ petitions are concerned, they involve a question of seniority really between two officers only, namely, Shri B.S Yadav, who is a promotee and Shri N.S Rao, who is a direct recruit. The other two promotees, namely, petitioners 2 and 3, have been compulsorily retired during the pendency of the writ petitions in this Court. Rule 12, which is now in force in Haryana, is similar to Rule 12 which was in force in Punjab prior to its amendment on December 31, 1976. Rule 12, as it originally existed, was amended by the Governor of Haryana, on April 21, 1972 with retrospective effect from April 1, 1970. However, on September 2, 1977 the Governor superseded that amendment, again with effect from April 1, 1970, and restored the rule of seniority as it existed originally in the 1963 Rules. In Haryana, therefore, the seniority of the members of the Superior Judicial Service will be determined with reference to the dates of confirmation, without applying the rule of rotation.90. We must express our concern at the manner in which the Rules of the Superior Judicial Service have been amended by the Governor of Punjab and, particularly, by the Governor of Haryana. In Punjab, the High Court was never consulted on the question whether the amendments made on December 31, 1976 should be given retrospective effect and, if so, from what date. The amendments were made despite the opposition of the High Court. In Haryana, the amendment of April 21, 1972 was made just in order to spite a single judicial officer who is a direct recruit. Fortunately, that amendment was withdrawn by the successor Government on September 2, 1977. A long retrospective effect was given to that amendment from April 1, 1970 because the amendment of April 21, 1972 was given retrospective effect from April 1, 1970 and that amendment had to be effectively superseded. We do hope that the State Governments will apply their mind more closely to the need to amend the Service Rules of the Superior Judiciary and that the rules will not be tinkered with too often. It should also be realised that giving retrospective effect to the rules creates frustration and discontentment since the just expectations of the officers are falsified. Settled seniority is thereby unsettled, giving rise to long drawn-out litigation between the promotees and direct appointees. That breeds indiscipline and draws the High Court into the arena, which is to be deprecated.91. Punjab and Haryana have a peculiar problem since they have a common High Court. But they are blessed, not cursed, with a common High Court. Today we find the strange spectacle of the High Court being called upon to determine the seniority of officers in one State by one test and that of officers in the other State by an opposite test. In Punjab, continuous officiation on a post in the service is the criterion of seniority. In Haryana, the date of confirmation is the governing factor. Can the two Governors not come together and take a joint decision applying a uniform test of seniority of their judicial officers who are under one common High Court? And though that is not the requirement of the proviso to Article 309 of the Constitution, we hope that whatever amendments are going to be made hereafter to the Rules will be made in consultation with the High Court. Nothing will be lost thereby and there is so much to gain : Goodwill, expert advice and the benefit of the experience of a body which has to administer the rules since the control over the subordinate courts is vested in it by Article 235. It is sad that the promotees and direct recruits have to dissipate their time and energy in litigation which they can ill-afford and which arises largely because of the lack of coordination between the High Court and the State Governments. It is time enough now to turn a new leaf.
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1976. Since the Governor exercises a legislative power under the proviso to9 of theit is open to him to give retrospective operation to the rules made under that provision. But the date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case. No such nexus is shown in the present case on behalf of the State Government. On the contrary, it appears to us that the retrospective effect was given to the rules from April 9, 1976 for the mere reason that on August 25, 1976 the High Court had issued a notification fixing seniority of the promotees and direct recruits appointed to the Superior Judicial Service of Punjab. The notification issued by the Governor on December 31, 1976, will, therefore, operate on future appointments or promotions made after that date and not on appointments or promotions made before that date. The seniority of all officers appointed or promoted to the Superior Judicial Service, Punjab, before December 31, 1976 will be determined by the High Court according to the criterion of the dates of confirmation, without applying the rule of rotation. The seniority of those promoted or appointed after December 31, 1976 will be determined in accordance with the rules promulgated under the notification of that date. Insofar as we see, judicial officers from Serial Nos. 1 to 36 mentioned in Annexureto the Punjab writ petition, that is, beginning with Shri J.S Chatha and ending with Shri Hardev Singh were appointed or promoted prior to December 31, 1976. Those from Serial No. 37 to Serial No. 43, that is beginning with Shri G.S Kalra and ending with Shri H.L Garg, were appointed or promoted after December 31, 1976. The validity of the notification dated December 31, 1976 was not seriously challenged before us, apart from its retrospectivity. We do not also see any constitutional or legal objection to the test of continuous officiation introduced thereby.79. Insofar as the Haryana writ petitions are concerned, they involve a question of seniority really between two officers only, namely, Shri B.S Yadav, who is a promotee and Shri N.S Rao, who is a direct recruit. The other two promotees, namely, petitioners 2 and 3, have been compulsorily retired during the pendency of the writ petitions in this Court. Rule 12, which is now in force in Haryana, is similar to Rule 12 which was in force in Punjab prior to its amendment on Decemberas it originally existed, was amended by the Governor of Haryana, on April 21, 1972 with retrospective effect from April 1, 1970. However, on September 2, 1977 the Governor superseded that amendment, again with effect from April 1, 1970, and restored the rule of seniority as it existed originally in the 1963 Rules. In Haryana, therefore, the seniority of the membersof the Superior Judicial Servicewill be determined with reference to the dates of confirmation, without applying the rule of rotation.90. We must express our concern at the manner in which the Rulesof the Superior Judicial Servicehave been amended by the Governor of Punjab and, particularly, by the Governor of Haryana. In Punjab, the High Court was never consulted on the question whether the amendments made on December 31, 1976 should be given retrospective effect and, if so, from what date. The amendments were made despite the opposition of the High Court. In Haryana, the amendment of April 21, 1972 was made just in order to spite a single judicial officer who is a direct recruit. Fortunately, that amendment was withdrawn by the successor Government on September 2, 1977. A long retrospective effect was given to that amendment from April 1, 1970 because the amendment of April 21, 1972 was given retrospective effect from April 1, 1970 and that amendment had to be effectively superseded. We do hope that the State Governments will apply their mind more closely to the need to amend the Service Rules of the Superior Judiciary and that the rules will not be tinkered with too often. It should also be realised that giving retrospective effect to the rules creates frustration and discontentment since the just expectations of the officers are falsified. Settled seniority is thereby unsettled, giving rise to long drawn-out litigation between the promotees and direct appointees. That breeds indiscipline and draws the High Court into the arena, which is to be deprecated.91. Punjab and Haryana have a peculiar problem since they have a common High Court. But they are blessed, not cursed, with a common High Court. Today we find the strange spectacle of the High Court being called upon to determine the seniority of officers in one State by one test and that of officers in the other State by an opposite test. In Punjab, continuous officiation on a post in the service is the criterion of seniority. In Haryana, the date of confirmation is the governing factor. Can the two Governors not come together and take a joint decision applying a uniform test of seniority of their judicial officers who are under one common High Court? And though that is not the requirement of the proviso to9 of thewe hope that whatever amendments are going to be made hereafter to the Rules will be made in consultation with the High Court. Nothing will be lost thereby and there is so much to gain : Goodwill, expert advice and the benefit of the experience of a body which has to administer the rules since the control over the subordinate courts is vested in it by Article 235. It is sad that the promotees and direct recruits have to dissipate their time and energy in litigation which they can ill-afford and which arises largely because of the lack of coordination between the High Court and the State Governments. It is time enough now to turn a new leaf.
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Shalimar Rope Works Ltd Vs. Abdul Hussain H. M. Hasan Bhai Rassiwala And Ors | registered office then at the place where the corporation carries on business."7. Rule 2 is not an exhaustive provision providing for all modes of service on the company in the sense as to what is meant by service of summons on the Secretary, Director or Principal Officer in Jute and Gunny Brokers Ltd. and another v. The Union of India and others it was held that the words "Principal Officer" in clause (a) of Rule 2 would include managing agents and it can, under this rule, be on a juristic person. Accordingly service on managing agents who are a corporation is valid under clause (a).8. The meaning of clause (b) has got to be understood in the background of the provisions of the Code in Order 5 which is meant for issue and service of summons on natural persons. Sending a summons by post to the registered office of the company, unless the contrary is shown, will be presumed to be service on the company itself. But the first par t of clause (b) has got to be understood with reference to the other provisions of the Code. In Rule 17 of Order 5 it has been provided:-"Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed."9. Sending summons to a corporation by post addressed to it at its registered office may be a good mode of service either by itself, or preferably, by way of an additional mode of service. But leaving the summons at the registered office of the corporation if it is literally interpreted to say that the summons can be left anywhere uncared for in the registered office of the company, then it will lead to anomalous and absurd results. It has to be read in the background of the provision contained in Order 5 Rule 17 of the Code. In other words, if the serving peon or bailiff is not able to serve the summons on the Secretary or any Director or any other Principal Officer of the Corporation because either he refuses to sign the summons or is not to be found by the serving person even after due diligence then he can leave the summo ns at the registered office of the company and make a report to that effect. In the instant case nothing of the kind was done. It was not the case of the respondent in its rejoinder filed in the Miscellaneous case that the service of the summons as effected in accordance with the first part of clause (b) of Rule 2 of Order 29 of the Code. Annexure A to the counter affidavit filed by the respondent is the petition filed by the appellant under Order 9 Rule 13 of the Code. In paragraph 9 of the said petition it was stated:-"Inspection of record of this Honble Court relating to the service of the summons reveals that the bailiff of the Small Cause Court at Calcutta seems to have delivered a c opy of the summons to a gentleman who is described as an office assistant, on 17-3-1975 at about 12.40 P.M. No office assistant of the defendant No. 1 Company is empowered or authorised to receive summons. The original summons which has been returned by the bailiff to this Honble Court, has been signed by one Shri Nawlakha. Shri Nawlakha was concerned merely with sales and had nothing to do with legal matters generally or with receiving summons in particular. Service of the summons on Shri Nawlakha cannot be regarded as due service on the defendant No. 1 for the purpose of Order 9 Rule 13 C.P.C."10. The rejoinder of the respondent is Annexure B to the counter affidavit. Para 9 of the rejoinder which is in reply to para 9 of the petition reads as follows:-"In reply to para 9 it is stated that the summons was duly served as stated in this para. But it is denied that Shri Nawlakha was concerned merely with sales and has nothing to do with legal matters, generally or with receiving summons in particular. It is denied that service on Shri Nawlakha cannot be regarded as due service on the Company Defendant No. 1 for the purpose of Order 9 Rule 13 C.P.C. Shri Nawlakha was a responsible officer who could have intimated the receipt of the summons to his so called bosses. Without prejudice it is submitted that the Madhya Pradesh amendment in Order 9 Rule 13 C.P.C. may kindly be perused."11. No where in the rejoinder a stand was taken that the summons was duly served on the company because it was left at the registered office of the company. Reference to the Madhya Pradesh amendment of Order 9 Rule 13 is immaterial as the Trial Court has pointed out that the company had no knowledge of the ex-parte decree, even otherwise, before 29- 7-1975. No contrary finding has been recorded by the High Court.12. We, therefore, hold that the judgment by the Trial Court setting aside the decree was correct. In any event no error of jurisdiction was committed by it. The High Court went wrong in interfering with it. | 1[ds]The High Court, however, took the view that since Navlakha was an employee of the company sitting in its registered office in Calcutta the summons will be deemed to have been duly served on the company within the meaning of the first part of clause (b) of Order 29, Rule 2 of the Code. In the opinion of the High Court since the learned Additional District Judge did not apply his mind to the provision of law contained in clause (b), it committed a material irregularity and illegality in exercise of its jurisdiction in setting aside the ex-parteour opinion the High Court was clearly wrong in upsetting the judgment of the Trial Court. There was no error in that judgment much less any error of jurisdiction entitling the High Court to interfere withsummons to a corporation by post addressed to it at its registered office may be a good mode of service either by itself, or preferably, by way of an additional mode of service. But leaving the summons at the registered office of the corporation if it is literally interpreted to say that the summons can be left anywhere uncared for in the registered office of the company, then it will lead to anomalous and absurd results. It has to be read in the background of the provision contained in Order 5 Rule 17 of the Code. In other words, if the serving peon or bailiff is not able to serve the summons on the Secretary or any Director or any other Principal Officer of the Corporation because either he refuses to sign the summons or is not to be found by the serving person even after due diligence then he can leave the summo ns at the registered office of the company and make a report to that effect. In the instant case nothing of the kind was done. It was not the case of the respondent in its rejoinder filed in the Miscellaneous case that the service of the summons as effected in accordance with the first part of clause (b) of Rule 2 of Order 29 of the Code. Annexure A to the counter affidavit filed by the respondent is the petition filed by the appellant under Order 9 Rule 13 of thewhere in the rejoinder a stand was taken that the summons was duly served on the company because it was left at the registered office of the company. Reference to the Madhya Pradesh amendment of Order 9 Rule 13 is immaterial as the Trial Court has pointed out that the company had no knowledge of the ex-parte decree, even otherwise, before 29- 7-1975. No contrary finding has been recorded by the Hightherefore, hold that the judgment by the Trial Court setting aside the decree was correct. In any event no error of jurisdiction was committed by it. The High Court went wrong in interfering with it. | 1 | 1,991 | 516 | ### 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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registered office then at the place where the corporation carries on business."7. Rule 2 is not an exhaustive provision providing for all modes of service on the company in the sense as to what is meant by service of summons on the Secretary, Director or Principal Officer in Jute and Gunny Brokers Ltd. and another v. The Union of India and others it was held that the words "Principal Officer" in clause (a) of Rule 2 would include managing agents and it can, under this rule, be on a juristic person. Accordingly service on managing agents who are a corporation is valid under clause (a).8. The meaning of clause (b) has got to be understood in the background of the provisions of the Code in Order 5 which is meant for issue and service of summons on natural persons. Sending a summons by post to the registered office of the company, unless the contrary is shown, will be presumed to be service on the company itself. But the first par t of clause (b) has got to be understood with reference to the other provisions of the Code. In Rule 17 of Order 5 it has been provided:-"Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed."9. Sending summons to a corporation by post addressed to it at its registered office may be a good mode of service either by itself, or preferably, by way of an additional mode of service. But leaving the summons at the registered office of the corporation if it is literally interpreted to say that the summons can be left anywhere uncared for in the registered office of the company, then it will lead to anomalous and absurd results. It has to be read in the background of the provision contained in Order 5 Rule 17 of the Code. In other words, if the serving peon or bailiff is not able to serve the summons on the Secretary or any Director or any other Principal Officer of the Corporation because either he refuses to sign the summons or is not to be found by the serving person even after due diligence then he can leave the summo ns at the registered office of the company and make a report to that effect. In the instant case nothing of the kind was done. It was not the case of the respondent in its rejoinder filed in the Miscellaneous case that the service of the summons as effected in accordance with the first part of clause (b) of Rule 2 of Order 29 of the Code. Annexure A to the counter affidavit filed by the respondent is the petition filed by the appellant under Order 9 Rule 13 of the Code. In paragraph 9 of the said petition it was stated:-"Inspection of record of this Honble Court relating to the service of the summons reveals that the bailiff of the Small Cause Court at Calcutta seems to have delivered a c opy of the summons to a gentleman who is described as an office assistant, on 17-3-1975 at about 12.40 P.M. No office assistant of the defendant No. 1 Company is empowered or authorised to receive summons. The original summons which has been returned by the bailiff to this Honble Court, has been signed by one Shri Nawlakha. Shri Nawlakha was concerned merely with sales and had nothing to do with legal matters generally or with receiving summons in particular. Service of the summons on Shri Nawlakha cannot be regarded as due service on the defendant No. 1 for the purpose of Order 9 Rule 13 C.P.C."10. The rejoinder of the respondent is Annexure B to the counter affidavit. Para 9 of the rejoinder which is in reply to para 9 of the petition reads as follows:-"In reply to para 9 it is stated that the summons was duly served as stated in this para. But it is denied that Shri Nawlakha was concerned merely with sales and has nothing to do with legal matters, generally or with receiving summons in particular. It is denied that service on Shri Nawlakha cannot be regarded as due service on the Company Defendant No. 1 for the purpose of Order 9 Rule 13 C.P.C. Shri Nawlakha was a responsible officer who could have intimated the receipt of the summons to his so called bosses. Without prejudice it is submitted that the Madhya Pradesh amendment in Order 9 Rule 13 C.P.C. may kindly be perused."11. No where in the rejoinder a stand was taken that the summons was duly served on the company because it was left at the registered office of the company. Reference to the Madhya Pradesh amendment of Order 9 Rule 13 is immaterial as the Trial Court has pointed out that the company had no knowledge of the ex-parte decree, even otherwise, before 29- 7-1975. No contrary finding has been recorded by the High Court.12. We, therefore, hold that the judgment by the Trial Court setting aside the decree was correct. In any event no error of jurisdiction was committed by it. The High Court went wrong in interfering with it.
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1
### Explanation:
The High Court, however, took the view that since Navlakha was an employee of the company sitting in its registered office in Calcutta the summons will be deemed to have been duly served on the company within the meaning of the first part of clause (b) of Order 29, Rule 2 of the Code. In the opinion of the High Court since the learned Additional District Judge did not apply his mind to the provision of law contained in clause (b), it committed a material irregularity and illegality in exercise of its jurisdiction in setting aside the ex-parteour opinion the High Court was clearly wrong in upsetting the judgment of the Trial Court. There was no error in that judgment much less any error of jurisdiction entitling the High Court to interfere withsummons to a corporation by post addressed to it at its registered office may be a good mode of service either by itself, or preferably, by way of an additional mode of service. But leaving the summons at the registered office of the corporation if it is literally interpreted to say that the summons can be left anywhere uncared for in the registered office of the company, then it will lead to anomalous and absurd results. It has to be read in the background of the provision contained in Order 5 Rule 17 of the Code. In other words, if the serving peon or bailiff is not able to serve the summons on the Secretary or any Director or any other Principal Officer of the Corporation because either he refuses to sign the summons or is not to be found by the serving person even after due diligence then he can leave the summo ns at the registered office of the company and make a report to that effect. In the instant case nothing of the kind was done. It was not the case of the respondent in its rejoinder filed in the Miscellaneous case that the service of the summons as effected in accordance with the first part of clause (b) of Rule 2 of Order 29 of the Code. Annexure A to the counter affidavit filed by the respondent is the petition filed by the appellant under Order 9 Rule 13 of thewhere in the rejoinder a stand was taken that the summons was duly served on the company because it was left at the registered office of the company. Reference to the Madhya Pradesh amendment of Order 9 Rule 13 is immaterial as the Trial Court has pointed out that the company had no knowledge of the ex-parte decree, even otherwise, before 29- 7-1975. No contrary finding has been recorded by the Hightherefore, hold that the judgment by the Trial Court setting aside the decree was correct. In any event no error of jurisdiction was committed by it. The High Court went wrong in interfering with it.
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A.K. Ghosh Vs. Bharat Coking Coal Limited | of land were purchased by the plaintiff from his own money and the building was also constructed by him from his own fund. It was also held that the building in question did not form part and parcel of the New Govindpur Colliery. It was further held that the building in question did not vest in the Central Government under the Act. The Trial Court, as such, decreed the suit of the plaintiff and also granted a decree for recovery of possession as the plaintiff had been dispossessed during the pendency of the suit. The Bharat Coking Coal Limited and Others aggrieved against the judgment of the Trial Court went in appeal. Learned Additional District Judge, Dhanbad affirmed the findings of fact regarding the ownership and possession in favour of the plaintiff. He also held that the house in question belonged to the plaintiff in his individual capacity. On a further appeal by Messrs Bharat Coking Coal Limited, Learned Single Judge of the High Court though agreed with the contention of the learned Counsel for the plaintiff but expressed his inability to decide the case in favour of the plaintiff as sitting singly, he was bound by a decision of the Division Bench of that Court given in F.A. No. 289 of 1979 titled Bharat Coking Coal Limited and Others v. Kali Prasad Agarwalla and Others, decided on 24.4.1980.5. Aggrieved against the aforesaid judgment of the learned Single Judge the plaintiff has come in appeal. It was contended by the learned Counsel for the defendant-respondent that K.P. Agarwalla’s case has been affirmed by this Court in Kali Prasad Agarwalla and Others v. Bharat Coking Coal Limited and Others, [1989 (2) S.C.R. 283]. It has thus been submitted that there is no force in this appeal and it ought to be dismissed as fully covered by the aforesaid decision in K.P. Agarwalla’s case. On the other hand, it was contended by the learned Counsel for the appellant that the case of K.P. Agarwalla’s (supra) is wholly distinguishable and the plaintiff’s suit in the present case ought to be decreed on the basis of the findings of fact recorded in favour of the plaintiff by all the Courts. 6. We have gone through the record and the judgment of the Courts below and we are clearly of the view that K.P. Agarwalla’s case (supra) is distinguishable and is not applicable in the facts and circumstances of the present case. In K.P. Agarwalla’s case, (supra) the suit property consisted of 30 bighas, 18 kattar and 11 chhataks being part of plot Nos. 59 and 70 in village Dhansar. The claim of the plaintiff K.P. Agarwalla was based on a registered indenture of lease dated December 9, 1949. The plaintiffs in that case claimed that they had become the owners of the lease hold land and were in possession of the same by exercising diverse acts of possession, mutating their name and by payments of stipulated rents to the State of Bihar, who had recognised the said lease. The Trial Court decreed the suit, but on appeal the High Court held that the lease granted to the plaintiffs was an encumbrance and it was annihilated with the issuance of the notification under Section 3 of the Act. The lease of the plaintiffs having come to an end consequent upon the issuance of notification under Section 3 of the Act, the plaintiffs had no title to be declared and the decree of the Trial Court was liable to be set aside. The High Court further held that the suit lands were adjacent to a coal mine, namely, North Bhuggatdih Colliery and were being used for the purposes of said mine, namely, stacking of coal and effecting local sales thereof. This Court after considering the various provisions of the Act and the evidence led by the authorities in the aforesaid case held as under: “In the light of this evidence, the location of the suit land and the uses to which it is put to are beyond doubt. The land is being used for carrying on the mining operations and it is adjacent to a mine. It is used for the purposes of the mine for carrying on the mining operations in respect of the part of the Seam lying immediately below the surface. Apparently, there cannot be any working mine without the surface being included in that concept. If the surface does not form part of the concept of mine, it is not possible to have any excavation. Section 2(h)(iv) includes open cast working within the definition of “mine”.Secondly, the suit land is also adjacent to a coal mine, namely, North Bagatdih Colliery and is being used for the purposes of the said mine, namely, stacking of the coal and effecting local sale thereof. It is, therefore, a mine as defined under Section 2(h)(vi) of the Act.”This Court ultimately on the basis of the above findings dismissed the appeal and clearly observed that “on the facts and circumstances of the case we cannot, therefore, accept the contention urged for the appellant in this regard”. 7. So far as the case before us is concerned, the property in question is a building used for residential purposes. All the Courts have recorded a finding in favour of the plaintiff that he had purchased the plot of land and also constructed the building over it in his individual capacity and not on behalf of New Govindpur Colliery Company Private Limited. On these facts, it cannot be held that the building in question falls within the meaning of ‘mine’ under Section 3(j) read with Clause (vi) of the Act. As already mentioned above, the case of K.P. Agarwalla ‘s (supra) is totally distinguishable on facts and as such it lends no assistance to the respondent in the present case. The above appeal has to be allowed on its own facts and circumstances of the case without expressing any opinion on any question of law raised in the present case. | 1[ds]6. We have gone through the record and the judgment of the Courts below and we are clearly of the view that K.P.case (supra) isand is not applicable in the facts and circumstances of the present case. In K.P.case, (supra) the suit property consisted of 30 bighas, 18 kattar and 11 chhataks being part of plot Nos. 59 and 70 in village Dhansar. The claim of the plaintiff K.P. Agarwalla was based on aindenture of lease dated December 9, 1949. The plaintiffs in that case claimed that they had become the owners of the lease hold land and were in possession of the same by exercising diverse acts of possession, mutating their name and by payments of stipulated rents to the State of Bihar, who hadthe said lease. The Trial Court decreed the suit, but on appeal the High Court held that the lease granted to the plaintiffs was an encumbrance and it was annihilated with the issuance of the notification under Section 3 of the Act. The lease of the plaintiffs having come to an end consequent upon the issuance of notification under Section 3 of the Act, the plaintiffs had no title to be declared and the decree of the Trial Court was liable to be set aside. The High Court further held that the suit lands were adjacent to a coal mine, namely, North Bhuggatdih Colliery and were being used for the purposes of said mine, namely, stacking of coal and effecting local sales thereof. This Court after considering the various provisions of the Act and the evidence led by the authorities in the aforesaid case held asthe light of this evidence, the location of the suit land and the uses to which it is put to are beyond doubt. The land is being used for carrying on the mining operations and it is adjacent to a mine. It is used for the purposes of the mine for carrying on the mining operations in respect of the part of the Seam lyingbelow the surface. Apparently, there cannot be any working mine without the surface being included in that concept. If thedoes not form part of the concept of mine, it is not possible to have any excavation. Section 2(h)(iv) includes open cast working within the definition ofthe suit land is also adjacent to a coal mine, namely, North Bagatdih Colliery and is being used for the purposes of the said mine, namely, stacking of the coal and effecting local saleIt is, therefore, a mine as defined under Section 2(h)(vi) of theCourt ultimately on the basis of the above findings dismissed the appeal and clearly observed thatSo far as the case before us is concerned, the property in question is a building used for residential purposes. All the Courts have recorded a finding in favour of the plaintiff that he had purchased the plot of land and also constructed the building over it in his individual capacity and not on behalf of New Govindpur Colliery Company Private Limited. On these facts, it cannot be held that the building in question falls within the meaning ofunder Section 3(j) read with Clause (vi) of the Act. As already mentioned above, the case of K.P. Agarwalla ‘s (supra) is totally distinguishable on facts and as such it lends no assistance to the respondent in the present case. The above appeal has to be allowed on its own facts and circumstances of the case without expressing any opinion on any question of law raised in the present case. | 1 | 1,501 | 660 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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of land were purchased by the plaintiff from his own money and the building was also constructed by him from his own fund. It was also held that the building in question did not form part and parcel of the New Govindpur Colliery. It was further held that the building in question did not vest in the Central Government under the Act. The Trial Court, as such, decreed the suit of the plaintiff and also granted a decree for recovery of possession as the plaintiff had been dispossessed during the pendency of the suit. The Bharat Coking Coal Limited and Others aggrieved against the judgment of the Trial Court went in appeal. Learned Additional District Judge, Dhanbad affirmed the findings of fact regarding the ownership and possession in favour of the plaintiff. He also held that the house in question belonged to the plaintiff in his individual capacity. On a further appeal by Messrs Bharat Coking Coal Limited, Learned Single Judge of the High Court though agreed with the contention of the learned Counsel for the plaintiff but expressed his inability to decide the case in favour of the plaintiff as sitting singly, he was bound by a decision of the Division Bench of that Court given in F.A. No. 289 of 1979 titled Bharat Coking Coal Limited and Others v. Kali Prasad Agarwalla and Others, decided on 24.4.1980.5. Aggrieved against the aforesaid judgment of the learned Single Judge the plaintiff has come in appeal. It was contended by the learned Counsel for the defendant-respondent that K.P. Agarwalla’s case has been affirmed by this Court in Kali Prasad Agarwalla and Others v. Bharat Coking Coal Limited and Others, [1989 (2) S.C.R. 283]. It has thus been submitted that there is no force in this appeal and it ought to be dismissed as fully covered by the aforesaid decision in K.P. Agarwalla’s case. On the other hand, it was contended by the learned Counsel for the appellant that the case of K.P. Agarwalla’s (supra) is wholly distinguishable and the plaintiff’s suit in the present case ought to be decreed on the basis of the findings of fact recorded in favour of the plaintiff by all the Courts. 6. We have gone through the record and the judgment of the Courts below and we are clearly of the view that K.P. Agarwalla’s case (supra) is distinguishable and is not applicable in the facts and circumstances of the present case. In K.P. Agarwalla’s case, (supra) the suit property consisted of 30 bighas, 18 kattar and 11 chhataks being part of plot Nos. 59 and 70 in village Dhansar. The claim of the plaintiff K.P. Agarwalla was based on a registered indenture of lease dated December 9, 1949. The plaintiffs in that case claimed that they had become the owners of the lease hold land and were in possession of the same by exercising diverse acts of possession, mutating their name and by payments of stipulated rents to the State of Bihar, who had recognised the said lease. The Trial Court decreed the suit, but on appeal the High Court held that the lease granted to the plaintiffs was an encumbrance and it was annihilated with the issuance of the notification under Section 3 of the Act. The lease of the plaintiffs having come to an end consequent upon the issuance of notification under Section 3 of the Act, the plaintiffs had no title to be declared and the decree of the Trial Court was liable to be set aside. The High Court further held that the suit lands were adjacent to a coal mine, namely, North Bhuggatdih Colliery and were being used for the purposes of said mine, namely, stacking of coal and effecting local sales thereof. This Court after considering the various provisions of the Act and the evidence led by the authorities in the aforesaid case held as under: “In the light of this evidence, the location of the suit land and the uses to which it is put to are beyond doubt. The land is being used for carrying on the mining operations and it is adjacent to a mine. It is used for the purposes of the mine for carrying on the mining operations in respect of the part of the Seam lying immediately below the surface. Apparently, there cannot be any working mine without the surface being included in that concept. If the surface does not form part of the concept of mine, it is not possible to have any excavation. Section 2(h)(iv) includes open cast working within the definition of “mine”.Secondly, the suit land is also adjacent to a coal mine, namely, North Bagatdih Colliery and is being used for the purposes of the said mine, namely, stacking of the coal and effecting local sale thereof. It is, therefore, a mine as defined under Section 2(h)(vi) of the Act.”This Court ultimately on the basis of the above findings dismissed the appeal and clearly observed that “on the facts and circumstances of the case we cannot, therefore, accept the contention urged for the appellant in this regard”. 7. So far as the case before us is concerned, the property in question is a building used for residential purposes. All the Courts have recorded a finding in favour of the plaintiff that he had purchased the plot of land and also constructed the building over it in his individual capacity and not on behalf of New Govindpur Colliery Company Private Limited. On these facts, it cannot be held that the building in question falls within the meaning of ‘mine’ under Section 3(j) read with Clause (vi) of the Act. As already mentioned above, the case of K.P. Agarwalla ‘s (supra) is totally distinguishable on facts and as such it lends no assistance to the respondent in the present case. The above appeal has to be allowed on its own facts and circumstances of the case without expressing any opinion on any question of law raised in the present case.
### Response:
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### Explanation:
6. We have gone through the record and the judgment of the Courts below and we are clearly of the view that K.P.case (supra) isand is not applicable in the facts and circumstances of the present case. In K.P.case, (supra) the suit property consisted of 30 bighas, 18 kattar and 11 chhataks being part of plot Nos. 59 and 70 in village Dhansar. The claim of the plaintiff K.P. Agarwalla was based on aindenture of lease dated December 9, 1949. The plaintiffs in that case claimed that they had become the owners of the lease hold land and were in possession of the same by exercising diverse acts of possession, mutating their name and by payments of stipulated rents to the State of Bihar, who hadthe said lease. The Trial Court decreed the suit, but on appeal the High Court held that the lease granted to the plaintiffs was an encumbrance and it was annihilated with the issuance of the notification under Section 3 of the Act. The lease of the plaintiffs having come to an end consequent upon the issuance of notification under Section 3 of the Act, the plaintiffs had no title to be declared and the decree of the Trial Court was liable to be set aside. The High Court further held that the suit lands were adjacent to a coal mine, namely, North Bhuggatdih Colliery and were being used for the purposes of said mine, namely, stacking of coal and effecting local sales thereof. This Court after considering the various provisions of the Act and the evidence led by the authorities in the aforesaid case held asthe light of this evidence, the location of the suit land and the uses to which it is put to are beyond doubt. The land is being used for carrying on the mining operations and it is adjacent to a mine. It is used for the purposes of the mine for carrying on the mining operations in respect of the part of the Seam lyingbelow the surface. Apparently, there cannot be any working mine without the surface being included in that concept. If thedoes not form part of the concept of mine, it is not possible to have any excavation. Section 2(h)(iv) includes open cast working within the definition ofthe suit land is also adjacent to a coal mine, namely, North Bagatdih Colliery and is being used for the purposes of the said mine, namely, stacking of the coal and effecting local saleIt is, therefore, a mine as defined under Section 2(h)(vi) of theCourt ultimately on the basis of the above findings dismissed the appeal and clearly observed thatSo far as the case before us is concerned, the property in question is a building used for residential purposes. All the Courts have recorded a finding in favour of the plaintiff that he had purchased the plot of land and also constructed the building over it in his individual capacity and not on behalf of New Govindpur Colliery Company Private Limited. On these facts, it cannot be held that the building in question falls within the meaning ofunder Section 3(j) read with Clause (vi) of the Act. As already mentioned above, the case of K.P. Agarwalla ‘s (supra) is totally distinguishable on facts and as such it lends no assistance to the respondent in the present case. The above appeal has to be allowed on its own facts and circumstances of the case without expressing any opinion on any question of law raised in the present case.
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Commissioner Of Income-Tax, U.P Vs. Jagannath Mahadeo Prasad, Etc | substantive provision dealing with the made of computing the profits and gains chargeable under the head "profits and gains of business, profession or vocation" and that the legislature had provided that when profits and gains were computed the loss sustained in a speculative transaction must not be taken into account except to the extent of the amount of profits and gains, if any, in any other business consisting of speculative transactions. The learned Chief Justice further referred to the mischief which was aimed at by the legislature in enacting the proviso. In recent times business-men were known to buy speculative losses in order to reduce their profits and the legislature wanted to put an end to that mischief which could only be done by preventing the assessee from reducing his profits by speculative losses. The Bombay decision was followed by the Madhya Pradesh High Court in Commissioner of Income-tax Nagpur and Bhandara v. Ram Gopal Kanhaiya Lal, 1960-38 ITR 193 = (AIR 1960 Madh Pra 106) as also by the Division Bench of the Punjab High Court in Manohar Lal Munshi Lal v. Commissioner of Income-tax, New Delhi, 1962-44 ITR 618 = (AIR 1960 Punj 520). The matter ultimately went to a Full Bench of the Punjab High Court in Commissioner of Income-tax v. Ram Swarup, 1962-45 ITR 248 = (AIR 1962 Punj 318) (FB) in which after reviewing the entire case law and examining the various aspects relevant to the question the view expressed by Chagla C. J. in the Bombay case was accepted as correct. Similarly in Jummar Lal Surajkaran v. Commissioner of Income-tax, Andhra Pradesh, 1963-47 ITR 809 (A. P.); Hanuman Investment Co. v. Commissioner of Income-tax, West Bengal, Calcutta, 1968-48 ITR 915 (Cal) and Joseph John v. Commissioner of Income-tax, Kerala, (1964) 51 ITR 322 (Ker) the considerations which prevailed in Keshavlal Premchands case were accepted as correct.4. It would appear that so far as this court is concerned the matter now stands concluded by the following observations in Commissioner of Income-tax, Gujarat v. Kantilal Nathu Chand, 1967-63 ITR 318 at p. 321 = (AIR 1967 SC 632 at pp. 634-635)."Section 24 is, thus, a provision laying down the manner of computation of total income. The principal clause of section 24 (1) lays down that, if there be a loss of profits or gains in any year under any of the heads mentioned in Section 6, that loss has to be set off against the income, profits or gains of the assessee under any other head in that year. If this provision had stood by itself without any provisos, the result would have been that all losses incurred by, an assessee under any of the heads mentioned in Section 6 would be adjusted against profits under all other heads, and then the total income of the assessee would be worked out on that basis. The first proviso to this sub-section, however, lays down an exception to this general rule contained in the principal clause. The exception relates to income from business sustained in speculative transactions and places, the limitation that losses sustained in speculative transactions are not to be taken into account in computing the profits and gains chargeable under the head "Profits and gains of business, profession or vocation, except to the extent that they will be set off against profits and gains in any other business which itself consists of speculative transactions. The effect of the proviso is that if there are profits in speculative business, those profits are added to income under the other heads mentioned in Section 6 for purposes of computing the total income of the assessee in order to determine the tax under Section 23 of the Act. On the other hand, losses in speculative business are not to be taken into account when computing the total income, except to the extent to which they can be set off against profits from other speculative business. The first proviso, thus, clearly limits the applicability of the principal clause of Section 24 (1); and, when applied, it governs the manner in which the total income of the assessee is to be computed. In the case before us, the Income-tax Officer was clearly right in the assessment years 1958-59 and 1959-60 in not setting off the losses in the speculative business against the income earned in those years either from property or from ready business in kappas".The learned counsel for the assessee sought to press the reasons which prevailed with the learned Judges of the High Court and has sought to characterise the above observation as obiter. It is neither necessary to deal with the reasoning of the High Court nor can that reasoning stand in view of what has been laid down in Kantilal Nathu Chands case, 1967-63 ITR 318 = (AIR 1967 SC 632 ) by this court which cannot be regarded as obiter because it has been clearly stated that the question of the applicability of the proviso with which we are concerned arise directly in that case in respect of the assessment years 1958-59 and 1959-60. The concluding portion of the passage extracted leaves no room for doubt in this matter.5. Moreover we are of the opinion that where the language is quite clear and no other view is possible it is futile to go into the question whether the proviso to S. 24 (1) operates as substantive provision or only by way of an exception to S. 24 (1). The proviso says in unmistakable and unequivocal terms that any losses sustained in speculative transactions which are in the nature of a business shall not be taken into account except to the extent of the amount of profits or gains in any other business consisting of speculative transactions. This has to be read with Explanation (1) according to which where the speculative transactions carried on are of such a nature as to constitute a business the business shall be deemed to be distinct and separate from any other business. | 1[ds]5. Moreover we are of the opinion that where the language is quite clear and no other view is possible it is futile to go into the question whether the proviso to S. 24 (1) operates as substantive provision or only by way of an exception to S. 24 (1). The proviso says in unmistakable and unequivocal terms that any losses sustained in speculative transactions which are in the nature of a business shall not be taken into account except to the extent of the amount of profits or gains in any other business consisting of speculative transactions. This has to be read with Explanation (1) according to which where the speculative transactions carried on are of such a nature as to constitute a business the business shall be deemed to be distinct and separate from any other business. | 1 | 2,092 | 153 | ### 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:
substantive provision dealing with the made of computing the profits and gains chargeable under the head "profits and gains of business, profession or vocation" and that the legislature had provided that when profits and gains were computed the loss sustained in a speculative transaction must not be taken into account except to the extent of the amount of profits and gains, if any, in any other business consisting of speculative transactions. The learned Chief Justice further referred to the mischief which was aimed at by the legislature in enacting the proviso. In recent times business-men were known to buy speculative losses in order to reduce their profits and the legislature wanted to put an end to that mischief which could only be done by preventing the assessee from reducing his profits by speculative losses. The Bombay decision was followed by the Madhya Pradesh High Court in Commissioner of Income-tax Nagpur and Bhandara v. Ram Gopal Kanhaiya Lal, 1960-38 ITR 193 = (AIR 1960 Madh Pra 106) as also by the Division Bench of the Punjab High Court in Manohar Lal Munshi Lal v. Commissioner of Income-tax, New Delhi, 1962-44 ITR 618 = (AIR 1960 Punj 520). The matter ultimately went to a Full Bench of the Punjab High Court in Commissioner of Income-tax v. Ram Swarup, 1962-45 ITR 248 = (AIR 1962 Punj 318) (FB) in which after reviewing the entire case law and examining the various aspects relevant to the question the view expressed by Chagla C. J. in the Bombay case was accepted as correct. Similarly in Jummar Lal Surajkaran v. Commissioner of Income-tax, Andhra Pradesh, 1963-47 ITR 809 (A. P.); Hanuman Investment Co. v. Commissioner of Income-tax, West Bengal, Calcutta, 1968-48 ITR 915 (Cal) and Joseph John v. Commissioner of Income-tax, Kerala, (1964) 51 ITR 322 (Ker) the considerations which prevailed in Keshavlal Premchands case were accepted as correct.4. It would appear that so far as this court is concerned the matter now stands concluded by the following observations in Commissioner of Income-tax, Gujarat v. Kantilal Nathu Chand, 1967-63 ITR 318 at p. 321 = (AIR 1967 SC 632 at pp. 634-635)."Section 24 is, thus, a provision laying down the manner of computation of total income. The principal clause of section 24 (1) lays down that, if there be a loss of profits or gains in any year under any of the heads mentioned in Section 6, that loss has to be set off against the income, profits or gains of the assessee under any other head in that year. If this provision had stood by itself without any provisos, the result would have been that all losses incurred by, an assessee under any of the heads mentioned in Section 6 would be adjusted against profits under all other heads, and then the total income of the assessee would be worked out on that basis. The first proviso to this sub-section, however, lays down an exception to this general rule contained in the principal clause. The exception relates to income from business sustained in speculative transactions and places, the limitation that losses sustained in speculative transactions are not to be taken into account in computing the profits and gains chargeable under the head "Profits and gains of business, profession or vocation, except to the extent that they will be set off against profits and gains in any other business which itself consists of speculative transactions. The effect of the proviso is that if there are profits in speculative business, those profits are added to income under the other heads mentioned in Section 6 for purposes of computing the total income of the assessee in order to determine the tax under Section 23 of the Act. On the other hand, losses in speculative business are not to be taken into account when computing the total income, except to the extent to which they can be set off against profits from other speculative business. The first proviso, thus, clearly limits the applicability of the principal clause of Section 24 (1); and, when applied, it governs the manner in which the total income of the assessee is to be computed. In the case before us, the Income-tax Officer was clearly right in the assessment years 1958-59 and 1959-60 in not setting off the losses in the speculative business against the income earned in those years either from property or from ready business in kappas".The learned counsel for the assessee sought to press the reasons which prevailed with the learned Judges of the High Court and has sought to characterise the above observation as obiter. It is neither necessary to deal with the reasoning of the High Court nor can that reasoning stand in view of what has been laid down in Kantilal Nathu Chands case, 1967-63 ITR 318 = (AIR 1967 SC 632 ) by this court which cannot be regarded as obiter because it has been clearly stated that the question of the applicability of the proviso with which we are concerned arise directly in that case in respect of the assessment years 1958-59 and 1959-60. The concluding portion of the passage extracted leaves no room for doubt in this matter.5. Moreover we are of the opinion that where the language is quite clear and no other view is possible it is futile to go into the question whether the proviso to S. 24 (1) operates as substantive provision or only by way of an exception to S. 24 (1). The proviso says in unmistakable and unequivocal terms that any losses sustained in speculative transactions which are in the nature of a business shall not be taken into account except to the extent of the amount of profits or gains in any other business consisting of speculative transactions. This has to be read with Explanation (1) according to which where the speculative transactions carried on are of such a nature as to constitute a business the business shall be deemed to be distinct and separate from any other business.
### Response:
1
### Explanation:
5. Moreover we are of the opinion that where the language is quite clear and no other view is possible it is futile to go into the question whether the proviso to S. 24 (1) operates as substantive provision or only by way of an exception to S. 24 (1). The proviso says in unmistakable and unequivocal terms that any losses sustained in speculative transactions which are in the nature of a business shall not be taken into account except to the extent of the amount of profits or gains in any other business consisting of speculative transactions. This has to be read with Explanation (1) according to which where the speculative transactions carried on are of such a nature as to constitute a business the business shall be deemed to be distinct and separate from any other business.
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Dtc Retired Employees'Association Vs. Delhi Transport Corporation | employment. An experienced workman is capable of securing another employment with better emoluments. He can also be tempted by other employers with more lucrative salary. The exist of an experienced workman would surely be a loss for his employer. In British Paints (India) Ltd. v. Workmen, AIR 1966 SC 732 , it was held that “a longer minimum in the case of voluntary retirement or resignation makes it probable that the workmen would stick to the company where they are working. That is why gratuity schemes usually provide for a longer minimum in the case of voluntary retirement or resignation”. 19. In Ahmedabad Municipal Corporation Workmen v. Ahmedabad Municipal Corporation, 1955 LAC 155, it was held as under : “The fundamental principle in allowing gratuity is that it is a retirement benefit for long services, a provision for old age and the trend of the recent authorities as borne out from various awards as well as the decision of this Tribunal is in favour of double benefit......We are, therefore, of the considered opinion that provident fund provides a certain measure of relief only and a portion of that consists of the employee’s wages, that he or his family would ultimately receive, and that this provision in the present day conditions is wholly insufficient relief and two retirement benefits when the finances of the concern permit ought to be allowed”. 20. The appellants were paid gratuity for their long service, but at the time of receipt of this amount, they were not entitled to get Pension. Now the appellants have opted for Pension. That is a similar relief given to them for the longer service rendered by them. The appellants cannot have the benefit of both the Pension and Gratuity. The appellants relied on a decision reported in State Government Pensioners’ Association & Ors. v. State of Andhra Pradesh, 1986 (3) SCR 383 and contended for the position that the gratuity is a one-time payment and once it has been paid the transaction is completed and closed and the same cannot be reopened at a later date. It was argued that in view of that decision, the appellants cannot be asked to refund the same. That is a case where the appellants therein were Government employees who retired before April 1, 1978. They contended that Gratuity is a part and parcel of the pension and the same cannot be looked separately from other pensionary reliefs and therefore they are entitled to the benefit of Gratuity “retrospectively” at the enhanced rate, as they had been paid Gratuity at the time of retirement at the then prevailing rate. This plea was not accepted and it was held that upward revision of Gratuity takes effect from the specified date with “prospective” effect only. This decision also is of no assistance to the appellants. 21. Yet another decision relied on by the appellants is Janpad Panchayat & Zila Panchayat Karamchari Sangh & Ors. v. State of M.P. & Ors., 1998 (8) SCC 568. This decision, though apparently seems to support the appellant’s case, does not really do so. In this case, the question arose whether the employees of Panchayat and Zila Parishad were entitled to pension and gratuity. While interpreting the Madhya Pradesh Panchayat Act, 1962, it was observed that Sections 75, 147 and 189 of that Act enabled the employees to get gratuity and pension subject to the previous approval of the Competent Authority. These observations were made in view of the specific provisions contained in the relevant Statutes. Whereas in the present case the appellants received gratuity at the time of their exit from the service, subsequently they opted for pension which had never been a part of their service conditions. It is a condition precedent that in order to get the benefit of the Pension Scheme, they have to refund the gratuity received by them. It is neither illegal nor unjust. 22. Learned Counsel for the petitioners in the Writ Petition No. 499 of 2000 contended that the petitioners had initially opted for the Pension Scheme in 1992, but as they were apprehensive regarding DTC’s ability to implement the Pension Scheme, they were compelled to opt out of the Pension Scheme. It is submitted that in 1995 only under the threat of contempt notice from this Court, the DTC came forward to implement the Pension Scheme, but no fresh option was given to the employees. It is also argued that DTC had not communicated to all its employees that they were going to implement the Scheme. It is also submitted that Pension is neither a bounty nor a charity. Therefore, all the retired employees should have been given the benefit of the Pension Scheme. 23. It is true that there was some delay in implementing the Scheme, but all the retired employees were given sufficient opportunity to exercise their option. In paragraph 9 of the counter affidavit filed on behalf of DTC it is stated that as far as the time of fill up pension option form is concerned, the letter dated 23.11.1992 conveyed by the Government of India, Ministry of Surface Transport, contained that the DTC shall obtain option from its employees within 30 days from the date of issue of circular. However, the DTC, in fact, extended the time twice, namely, firstly upto 15th January, 1993, and secondly upto 1st February, 1993. Therefore, the retired employees had, in fact, more than one month’s time to exercise their option. We do not think that sufficient time was not given to the employees to exercise their option for the Pension Scheme. Those employees who had received the benefit of employer’s Provident Fund Scheme failed to exercise their option and thus disentitled themselves from getting the Pension benefit. The Pension Scheme was implemented on the basis of certain guidelines; it is not for the Court to interfere with the same. The Division Bench has rightly taken the view that those who had not exercised their option are not entitled to get Pension. 24. | 0[ds]It is also important to note that as per Claus 4 of the Scheme, those employees who joined DTC with effect from 23.11.1992 are compulsorily covered by the Scheme. Therefore, the Division Bench is perfectly justified in holding that the employees who retired on or after 3.8.1981 but before 27.11.1992 and had not exercised their option within the stipulated period or within the extended period, are not entitled to pension under thethe retired employees had utilised the money received to their advantage. Therefore, they are bound not return the same alongwith interest; otherwise, a section of the employees would be unduly benefitedother employees. Therefore, we do not think that such a clause in the Scheme is irrational or illegal. We do not find any infirmity in the findings recorded by the High Court.It was argued that in view of(5) of Section 4, the employees can receive better terms of gratuity under any award or agreement or contract with the employer and as the provisions contained in the Payment of Gratuity Act itself contemplate better terms of gratuity or other payment than what is permissible under the Act, the present Pension Scheme could only be construed as an award or agreement for better terms.It was argued that in view ofthat circumstance, the appellants are not liable to refund thein the present case the appellants received gratuity at the time of their exit from the service, subsequently they opted for pension which had never been a part of their service conditions. It is a condition precedent that in order to get the benefit of the Pension Scheme, they have to refund the gratuity received by them. It is neither illegal nor unjust.It is true that there was some delay in implementing the Scheme, but all the retired employees were given sufficient opportunity to exercise their option. In paragraph 9 of the counter affidavit filed on behalf of DTC it is stated that as far as the time of fill up pension option form is concerned, the letter dated 23.11.1992 conveyed by the Government of India, Ministry of Surface Transport, contained that the DTC shall obtain option from its employees within 30 days from the date of issue of circular. However, the DTC, in fact, extended the time twice, namely, firstly upto 15th January, 1993, and secondly upto 1st February, 1993. Therefore, the retired employees had, in fact, more than onetime to exercise their option. We do not think that sufficient time was not given to the employees to exercise their option for the Pension Scheme. Those employees who had received the benefit ofProvident Fund Scheme failed to exercise their option and thus disentitled themselves from getting the Pension benefit. The Pension Scheme was implemented on the basis of certain guidelines; it is not for the Court to interfere with the same. The Division Bench has rightly taken the view that those who had not exercised their option are not entitled to get Pension. | 0 | 4,120 | 540 | ### 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:
employment. An experienced workman is capable of securing another employment with better emoluments. He can also be tempted by other employers with more lucrative salary. The exist of an experienced workman would surely be a loss for his employer. In British Paints (India) Ltd. v. Workmen, AIR 1966 SC 732 , it was held that “a longer minimum in the case of voluntary retirement or resignation makes it probable that the workmen would stick to the company where they are working. That is why gratuity schemes usually provide for a longer minimum in the case of voluntary retirement or resignation”. 19. In Ahmedabad Municipal Corporation Workmen v. Ahmedabad Municipal Corporation, 1955 LAC 155, it was held as under : “The fundamental principle in allowing gratuity is that it is a retirement benefit for long services, a provision for old age and the trend of the recent authorities as borne out from various awards as well as the decision of this Tribunal is in favour of double benefit......We are, therefore, of the considered opinion that provident fund provides a certain measure of relief only and a portion of that consists of the employee’s wages, that he or his family would ultimately receive, and that this provision in the present day conditions is wholly insufficient relief and two retirement benefits when the finances of the concern permit ought to be allowed”. 20. The appellants were paid gratuity for their long service, but at the time of receipt of this amount, they were not entitled to get Pension. Now the appellants have opted for Pension. That is a similar relief given to them for the longer service rendered by them. The appellants cannot have the benefit of both the Pension and Gratuity. The appellants relied on a decision reported in State Government Pensioners’ Association & Ors. v. State of Andhra Pradesh, 1986 (3) SCR 383 and contended for the position that the gratuity is a one-time payment and once it has been paid the transaction is completed and closed and the same cannot be reopened at a later date. It was argued that in view of that decision, the appellants cannot be asked to refund the same. That is a case where the appellants therein were Government employees who retired before April 1, 1978. They contended that Gratuity is a part and parcel of the pension and the same cannot be looked separately from other pensionary reliefs and therefore they are entitled to the benefit of Gratuity “retrospectively” at the enhanced rate, as they had been paid Gratuity at the time of retirement at the then prevailing rate. This plea was not accepted and it was held that upward revision of Gratuity takes effect from the specified date with “prospective” effect only. This decision also is of no assistance to the appellants. 21. Yet another decision relied on by the appellants is Janpad Panchayat & Zila Panchayat Karamchari Sangh & Ors. v. State of M.P. & Ors., 1998 (8) SCC 568. This decision, though apparently seems to support the appellant’s case, does not really do so. In this case, the question arose whether the employees of Panchayat and Zila Parishad were entitled to pension and gratuity. While interpreting the Madhya Pradesh Panchayat Act, 1962, it was observed that Sections 75, 147 and 189 of that Act enabled the employees to get gratuity and pension subject to the previous approval of the Competent Authority. These observations were made in view of the specific provisions contained in the relevant Statutes. Whereas in the present case the appellants received gratuity at the time of their exit from the service, subsequently they opted for pension which had never been a part of their service conditions. It is a condition precedent that in order to get the benefit of the Pension Scheme, they have to refund the gratuity received by them. It is neither illegal nor unjust. 22. Learned Counsel for the petitioners in the Writ Petition No. 499 of 2000 contended that the petitioners had initially opted for the Pension Scheme in 1992, but as they were apprehensive regarding DTC’s ability to implement the Pension Scheme, they were compelled to opt out of the Pension Scheme. It is submitted that in 1995 only under the threat of contempt notice from this Court, the DTC came forward to implement the Pension Scheme, but no fresh option was given to the employees. It is also argued that DTC had not communicated to all its employees that they were going to implement the Scheme. It is also submitted that Pension is neither a bounty nor a charity. Therefore, all the retired employees should have been given the benefit of the Pension Scheme. 23. It is true that there was some delay in implementing the Scheme, but all the retired employees were given sufficient opportunity to exercise their option. In paragraph 9 of the counter affidavit filed on behalf of DTC it is stated that as far as the time of fill up pension option form is concerned, the letter dated 23.11.1992 conveyed by the Government of India, Ministry of Surface Transport, contained that the DTC shall obtain option from its employees within 30 days from the date of issue of circular. However, the DTC, in fact, extended the time twice, namely, firstly upto 15th January, 1993, and secondly upto 1st February, 1993. Therefore, the retired employees had, in fact, more than one month’s time to exercise their option. We do not think that sufficient time was not given to the employees to exercise their option for the Pension Scheme. Those employees who had received the benefit of employer’s Provident Fund Scheme failed to exercise their option and thus disentitled themselves from getting the Pension benefit. The Pension Scheme was implemented on the basis of certain guidelines; it is not for the Court to interfere with the same. The Division Bench has rightly taken the view that those who had not exercised their option are not entitled to get Pension. 24.
### Response:
0
### Explanation:
It is also important to note that as per Claus 4 of the Scheme, those employees who joined DTC with effect from 23.11.1992 are compulsorily covered by the Scheme. Therefore, the Division Bench is perfectly justified in holding that the employees who retired on or after 3.8.1981 but before 27.11.1992 and had not exercised their option within the stipulated period or within the extended period, are not entitled to pension under thethe retired employees had utilised the money received to their advantage. Therefore, they are bound not return the same alongwith interest; otherwise, a section of the employees would be unduly benefitedother employees. Therefore, we do not think that such a clause in the Scheme is irrational or illegal. We do not find any infirmity in the findings recorded by the High Court.It was argued that in view of(5) of Section 4, the employees can receive better terms of gratuity under any award or agreement or contract with the employer and as the provisions contained in the Payment of Gratuity Act itself contemplate better terms of gratuity or other payment than what is permissible under the Act, the present Pension Scheme could only be construed as an award or agreement for better terms.It was argued that in view ofthat circumstance, the appellants are not liable to refund thein the present case the appellants received gratuity at the time of their exit from the service, subsequently they opted for pension which had never been a part of their service conditions. It is a condition precedent that in order to get the benefit of the Pension Scheme, they have to refund the gratuity received by them. It is neither illegal nor unjust.It is true that there was some delay in implementing the Scheme, but all the retired employees were given sufficient opportunity to exercise their option. In paragraph 9 of the counter affidavit filed on behalf of DTC it is stated that as far as the time of fill up pension option form is concerned, the letter dated 23.11.1992 conveyed by the Government of India, Ministry of Surface Transport, contained that the DTC shall obtain option from its employees within 30 days from the date of issue of circular. However, the DTC, in fact, extended the time twice, namely, firstly upto 15th January, 1993, and secondly upto 1st February, 1993. Therefore, the retired employees had, in fact, more than onetime to exercise their option. We do not think that sufficient time was not given to the employees to exercise their option for the Pension Scheme. Those employees who had received the benefit ofProvident Fund Scheme failed to exercise their option and thus disentitled themselves from getting the Pension benefit. The Pension Scheme was implemented on the basis of certain guidelines; it is not for the Court to interfere with the same. The Division Bench has rightly taken the view that those who had not exercised their option are not entitled to get Pension.
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Commissioner of Income Tax Vs. Shri Rama Multi Tech Ltd | Civil Appeal Nos. 4072-4073 of 2007 1. The only question on which the leave has been granted by this Courts order dated August 31, 2007 is as follows: "When the Assessee had itself capitalized the interest and other expenditure incurred towards creation assets. Whether the Commissioner of Income-tax (Appeals) and the Tribunal were right and justified in allowing the Assessee to claim the said expenditure as revenue expenditure without any just cause?" Briefly stated, the facts of the present appeals are as follows: The Respondent is a public limited company. For the assessment year 2000-01 it had incurred an expenditure of Rs. 3,37,84,348 towards payment of interest on loans taken and other items for setting up the industry. Even though it had capitalised the said amount and claimed depreciation before the assessing authority, however, in appeal, the Respondent raised additional ground claiming deduction of the aforesaid amount on interest paid with some other expenditure on other items connected therewith as revenue expenditure. 2. The Commissioner of Income-tax (Appeals) vide order dated March 5, 2004 allowed the claim of the Respondent-Assessee only to the extent of interest amount of Rs. 2,92,45,670 paid on loans taken by it for establishing the industry. He, however, disallowed the other expenditures, namely, financial charges, professional expenses, upfront fee, etc. 3. The Revenue, feeling aggrieved by the said allowance, preferred an appeal before the Income-tax Appellate Tribunal which vide order dated December 2, 2004 upheld the order of the Commissioner of Income-tax (Appeals) in so far as it related to the allowance of the expenditure claimed towards payment of interest and also allowed expenditure on other items connected therewith. The High Court did not interfere in the appeal preferred by the Revenue on the ground that the Tribunal has followed the decision of the Gujarat High Court in the case of Deputy CIT v. Core Healthcare Ltd. [2001] 251 ITR 61 (Guj). 4. Feeling aggrieved, the Commissioner of Income-tax has preferred the present appeal. 5. We have heard learned Counsel for the parties. 6. We find that this Court in the case of Deputy CIT v. Core Health Care Ltd. [2008] 2 SCC 465 : [2008] 298 ITR 194 (SC) has affirmed the view taken by the Gujarat High Court. 7. In this view of the matter, we are of the considered opinion that the Income-tax Appellate Tribunal was justified in allowing the expenditure of Rs. 3,37,84,348 towards the interest paid on the loans taken and expenditure on other items connected therewith for establishment of the unit, while affirming the order of the Commissioner of Income-tax (Appeals). 8. Learned Counsel for the Revenue-Appellant submitted that the Respondent cannot claim depreciation on the amount of interest which has been allowed as revenue expenditure and therefore, the depreciation referable to such interest expenditure be reversed. 9. Learned Counsel for the Respondent however submitted that there is nothing on record that depreciation on this amount has been taken by the Respondent. | 1[ds]6. We find that this Court in the case of Deputy CIT v. Core Health Care Ltd. [2008] 2 SCC 465 : [2008] 298 ITR 194 (SC) has affirmed the view taken by the Gujarat High Court7. In this view of the matter, we are of the considered opinion that the Income-tax Appellate Tribunal was justified in allowing the expenditure of Rs. 3,37,84,348 towards the interest paid on the loans taken and expenditure on other items connected therewith for establishment of the unit, while affirming the order of the Commissioner of Income-tax (Appeals). | 1 | 563 | 111 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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Civil Appeal Nos. 4072-4073 of 2007 1. The only question on which the leave has been granted by this Courts order dated August 31, 2007 is as follows: "When the Assessee had itself capitalized the interest and other expenditure incurred towards creation assets. Whether the Commissioner of Income-tax (Appeals) and the Tribunal were right and justified in allowing the Assessee to claim the said expenditure as revenue expenditure without any just cause?" Briefly stated, the facts of the present appeals are as follows: The Respondent is a public limited company. For the assessment year 2000-01 it had incurred an expenditure of Rs. 3,37,84,348 towards payment of interest on loans taken and other items for setting up the industry. Even though it had capitalised the said amount and claimed depreciation before the assessing authority, however, in appeal, the Respondent raised additional ground claiming deduction of the aforesaid amount on interest paid with some other expenditure on other items connected therewith as revenue expenditure. 2. The Commissioner of Income-tax (Appeals) vide order dated March 5, 2004 allowed the claim of the Respondent-Assessee only to the extent of interest amount of Rs. 2,92,45,670 paid on loans taken by it for establishing the industry. He, however, disallowed the other expenditures, namely, financial charges, professional expenses, upfront fee, etc. 3. The Revenue, feeling aggrieved by the said allowance, preferred an appeal before the Income-tax Appellate Tribunal which vide order dated December 2, 2004 upheld the order of the Commissioner of Income-tax (Appeals) in so far as it related to the allowance of the expenditure claimed towards payment of interest and also allowed expenditure on other items connected therewith. The High Court did not interfere in the appeal preferred by the Revenue on the ground that the Tribunal has followed the decision of the Gujarat High Court in the case of Deputy CIT v. Core Healthcare Ltd. [2001] 251 ITR 61 (Guj). 4. Feeling aggrieved, the Commissioner of Income-tax has preferred the present appeal. 5. We have heard learned Counsel for the parties. 6. We find that this Court in the case of Deputy CIT v. Core Health Care Ltd. [2008] 2 SCC 465 : [2008] 298 ITR 194 (SC) has affirmed the view taken by the Gujarat High Court. 7. In this view of the matter, we are of the considered opinion that the Income-tax Appellate Tribunal was justified in allowing the expenditure of Rs. 3,37,84,348 towards the interest paid on the loans taken and expenditure on other items connected therewith for establishment of the unit, while affirming the order of the Commissioner of Income-tax (Appeals). 8. Learned Counsel for the Revenue-Appellant submitted that the Respondent cannot claim depreciation on the amount of interest which has been allowed as revenue expenditure and therefore, the depreciation referable to such interest expenditure be reversed. 9. Learned Counsel for the Respondent however submitted that there is nothing on record that depreciation on this amount has been taken by the Respondent.
### Response:
1
### Explanation:
6. We find that this Court in the case of Deputy CIT v. Core Health Care Ltd. [2008] 2 SCC 465 : [2008] 298 ITR 194 (SC) has affirmed the view taken by the Gujarat High Court7. In this view of the matter, we are of the considered opinion that the Income-tax Appellate Tribunal was justified in allowing the expenditure of Rs. 3,37,84,348 towards the interest paid on the loans taken and expenditure on other items connected therewith for establishment of the unit, while affirming the order of the Commissioner of Income-tax (Appeals).
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THE STATE OF MAHARASHTRA Vs. M/S MOTI RATAN ESTATE | writ petitions have been dismissed by the High Court and orders have attained finality and this Court has also dismissed the appeals/SLPs. Thus, we are not inclined to take a different view in the instant case. 17. In the instant case, various notifications and declarations under Sections 4 and 6 were issued on the same date with respect to the same scheme. Thus, they were part and parcel of the same scheme. Thus, the submission raised by the learned counsel for the appellant stands rejected.?7.5 On considering catena of decisions of this Court, referred to hereinabove, the following propositions of law can be culled out: (i) when the scheme of the acquisition is one, interim stay granted in respect of one pocket of land would operate even with respect to other pockets of land and in such a situation the authorities are justified in not proceeding with the acquisition proceedings and therefore the acquisition proceedings would not lapse; (ii) interim order of stay granted in respect of one of the land owners would have a complete restraint for the authorities to proceed further; (iii) when the stay has been granted in one matter and where the scheme was one, the authorities were justified to stay their hands; (iv) the extended meaning of the words ?stay of the action or proceedings under Section 11A of the Act? would mean that any interim effective order passed by the court which may come in the way of the authorities to proceed further; (v) Explanation to Section 11A of the Act is in the widest possible terms and there is no warrant for limiting the action or proceedings, referred to in the explanation, to actions or proceedings preceding the making of the award under Section 11 of the Act and therefore the period of injunction obtained by the land holders staying the acquisition and authorities from taking possession of the land has to be excluded in computing the period of two years.7.6 Now so far as submission on behalf of the original writ petitioners that when subsequently the award was declared, the lands with respect to Writ Petition Nos. 3051/2013 and 3159/2013 were excluded and therefore the decision of this Court in the case of Raj Kumar Gandhi (supra) shall not be applicable has no substance. Merely because to avoid contempt proceedings and/or in view of the stay granted in the aforesaid two writ petitions which was continued subsequently till the representations are considered, the authorities excluded the lands for which writ petitions were filed, it cannot be said that the period during which the stay was operating in Writ Petition Nos. 3051/2013 and 3159/2013 shall not be excluded. The words ?stay of the action or proceedings under Section 11A of the Act? would mean that any order of stay in one or the other matter if passed by Court of law, which either prohibits or prevents the State authorities from passing of an award, such a period of stay of action/proceedings deserves to be excluded while computing the statutory period of two years in passing of an award by the authority under Section 11 of the Act. Even otherwise, as observed hereinabove, there was already a stay of possession in Writ Petition No. 7867/2012 and therefore even otherwise the authorities were justified in not proceeding further with the acquisition proceedings. 7.7 It is true that there is no bar to have more than one declaration under Section 6 or the award under Section 11 of the Act in reference to the self-same acquisition proceedings initiated under Section 4 followed with Section 6 of the Act but if there is a stay of the proceedings by a Court of law in any of the matter, that certainly prevents the authorities in taking its decision to complete the acquisition proceedings within the statutory period as mandated by law in passing of award within two years from the date of declaration under Section 6 of the Act. 7.8 In meeting out a complex situation, the conclusion which emerges is that if there is any stay over the action or proceeding by a Court of law, in one or the other matter arising from the self- same acquisition proceedings in reference to Section 4 followed with Section 6 of the Act, the authorities are said to be justified in the given facts and circumstances to stay their hands and await the decision of the Court and such a period during which there is a stay over the action or proceeding by a Court of law in a matter, that has to be excluded for all practical purposes, in computing the statutory period of two years in passing of an award under Section 11 of the Act. 8. Applying the aforesaid principles of law to the facts of the case on hand and considering the fact that there was a stay granted by the High Court in writ petition Nos. 3051/2013 and 3159/2013 against declaring the final award and the said writ petitions were with respect to the lands acquired of the very village under the very notification and for the very project and there was stay of possession in writ petition no. 7867/2012 during the pendency of the said petition, the period during which the aforesaid stay/s was/were operative is to be excluded and if the said period is excluded, in that case, the acquisition proceedings would not lapse, considering explanation to Section 11A of the Act. Under the circumstances, the High Court has erred in quashing and setting aside the acquisition proceedings on the ground that the same have lapsed as the award was not declared within a period of two years from the date of declaration under Section 6 of the Act. The High Court has committed a grave error in not excluding the period of interim stay granted by it in writ petition nos. 3051/2013 and 3159/2013. As observed hereinabove, even grant of interim stay of possession would also save lapsing of the acquisition. | 1[ds]7.5 On considering catena of decisions of this Court, referred to hereinabove, the following propositions of law can be culled) when the scheme of the acquisition is one, interim stay granted in respect of one pocket of land would operate even with respect to other pockets of land and in such a situation the authorities are justified in not proceeding with the acquisition proceedings and therefore the acquisition proceedings would notinterim order of stay granted in respect of one of the land owners would have a complete restraint for the authorities to proceedwhen the stay has been granted in one matter and where the scheme was one, the authorities were justified to stay theirthe extended meaning of the words ?stay of the action or proceedings under Section 11A of the Act? would mean that any interim effective order passed by the court which may come in the way of the authorities to proceedExplanation to Section 11A of the Act is in the widest possible terms and there is no warrant for limiting the action or proceedings, referred to in the explanation, to actions or proceedings preceding the making of the award under Section 11 of the Act and therefore the period of injunction obtained by the land holders staying the acquisition and authorities from taking possession of the land has to be excluded in computing the period of twoNow so far as submission on behalf of the original writ petitioners that when subsequently the award was declared, the lands with respect to Writ Petition Nos. 3051/2013 and 3159/2013 were excluded and therefore the decision of this Court in the case of Raj Kumar Gandhi (supra) shall not be applicable has no substance. Merely because to avoid contempt proceedings and/or in view of the stay granted in the aforesaid two writ petitions which was continued subsequently till the representations are considered, the authorities excluded the lands for which writ petitions were filed, it cannot be said that the period during which the stay was operating in Writ Petition Nos. 3051/2013 and 3159/2013 shall not be excluded. The words ?stay of the action or proceedings under Section 11A of the Act? would mean that any order of stay in one or the other matter if passed by Court of law, which either prohibits or prevents the State authorities from passing of an award, such a period of stay of action/proceedings deserves to be excluded while computing the statutory period of two years in passing of an award by the authority under Section 11 of the Act. Even otherwise, as observed hereinabove, there was already a stay of possession in Writ Petition No. 7867/2012 and therefore even otherwise the authorities were justified in not proceeding further with the acquisition proceedings.Applying the aforesaid principles of law to the facts of the case on hand and considering the fact that there was a stay granted by the High Court in writ petition Nos. 3051/2013 and 3159/2013 against declaring the final award and the said writ petitions were with respect to the lands acquired of the very village under the very notification and for the very project and there was stay of possession in writ petition no. 7867/2012 during the pendency of the said petition, the period during which the aforesaid stay/s was/were operative is to be excluded and if the said period is excluded, in that case, the acquisition proceedings would not lapse, considering explanation to Section 11A of the Act. Under the circumstances, the High Court has erred in quashing and setting aside the acquisition proceedings on the ground that the same have lapsed as the award was not declared within a period of two years from the date of declaration under Section 6 of the Act. The High Court has committed a grave error in not excluding the period of interim stay granted by it in writ petition nos. 3051/2013 and 3159/2013. As observed hereinabove, even grant of interim stay of possession would also save lapsing of theNow so far as the appeal arising out of the impugned judgment and order passed by the High Court in Writ Petition No. 7867/2012 is concerned, immediately on publication of the notification under Section 4 of the Act, the original writ petitioners challenged the acquisition proceedings including the notification under Section 4 of the Act. The High Court passed the interim order directing that the possession of the original writ petitioners shall not be disturbed. Simultaneously, the other land owners whose lands were acquired under the very same notification and of the very village Asarjan and acquired for the very project also challenged the acquisition proceedings by filing Writ Petition Nos. 3051/2013 and 3159/2013. The High Court granted stay to the acquisition proceedings on 12.11.2013 which subsequently came to be modified and it was directed that the final award shall not be declared. Other two writ petitions being Writ Petition Nos. 10894/2016 and 9088/2016 were filed after the award was declared under Section 11 of the Act challenging the acquisition proceedings on the ground that the same have been lapsed under Section 11A of the Act as the award has not been declared within a period of two years. The State authorities pleaded for extension of time during which the stay was operating in writ petition nos. 3051/2013 and 3159/2013. It has not been accepted by the High Court on the ground that the stay of the acquisition proceedings was granted not relating to the writ petitioners but was with respect to the other landIt is true that there is no bar to have more than one declaration under Section 6 or the award under Section 11 of the Act in reference to the self-same acquisition proceedings initiated under Section 4 followed with Section 6 of the Act but if there is a stay of the proceedings by a Court of law in any of the matter, that certainly prevents the authorities in taking its decision to complete the acquisition proceedings within the statutory period as mandated by law in passing of award within two years from the date of declaration under Section 6 of theIn meeting out a complex situation, the conclusion which emerges is that if there is any stay over the action or proceeding by a Court of law, in one or the other matter arising from the self- same acquisition proceedings in reference to Section 4 followed with Section 6 of the Act, the authorities are said to be justified in the given facts and circumstances to stay their hands and await the decision of the Court and such a period during which there is a stay over the action or proceeding by a Court of law in a matter, that has to be excluded for all practical purposes, in computing the statutory period of two years in passing of an award under Section 11 of the Act. | 1 | 6,203 | 1,209 | ### 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:
writ petitions have been dismissed by the High Court and orders have attained finality and this Court has also dismissed the appeals/SLPs. Thus, we are not inclined to take a different view in the instant case. 17. In the instant case, various notifications and declarations under Sections 4 and 6 were issued on the same date with respect to the same scheme. Thus, they were part and parcel of the same scheme. Thus, the submission raised by the learned counsel for the appellant stands rejected.?7.5 On considering catena of decisions of this Court, referred to hereinabove, the following propositions of law can be culled out: (i) when the scheme of the acquisition is one, interim stay granted in respect of one pocket of land would operate even with respect to other pockets of land and in such a situation the authorities are justified in not proceeding with the acquisition proceedings and therefore the acquisition proceedings would not lapse; (ii) interim order of stay granted in respect of one of the land owners would have a complete restraint for the authorities to proceed further; (iii) when the stay has been granted in one matter and where the scheme was one, the authorities were justified to stay their hands; (iv) the extended meaning of the words ?stay of the action or proceedings under Section 11A of the Act? would mean that any interim effective order passed by the court which may come in the way of the authorities to proceed further; (v) Explanation to Section 11A of the Act is in the widest possible terms and there is no warrant for limiting the action or proceedings, referred to in the explanation, to actions or proceedings preceding the making of the award under Section 11 of the Act and therefore the period of injunction obtained by the land holders staying the acquisition and authorities from taking possession of the land has to be excluded in computing the period of two years.7.6 Now so far as submission on behalf of the original writ petitioners that when subsequently the award was declared, the lands with respect to Writ Petition Nos. 3051/2013 and 3159/2013 were excluded and therefore the decision of this Court in the case of Raj Kumar Gandhi (supra) shall not be applicable has no substance. Merely because to avoid contempt proceedings and/or in view of the stay granted in the aforesaid two writ petitions which was continued subsequently till the representations are considered, the authorities excluded the lands for which writ petitions were filed, it cannot be said that the period during which the stay was operating in Writ Petition Nos. 3051/2013 and 3159/2013 shall not be excluded. The words ?stay of the action or proceedings under Section 11A of the Act? would mean that any order of stay in one or the other matter if passed by Court of law, which either prohibits or prevents the State authorities from passing of an award, such a period of stay of action/proceedings deserves to be excluded while computing the statutory period of two years in passing of an award by the authority under Section 11 of the Act. Even otherwise, as observed hereinabove, there was already a stay of possession in Writ Petition No. 7867/2012 and therefore even otherwise the authorities were justified in not proceeding further with the acquisition proceedings. 7.7 It is true that there is no bar to have more than one declaration under Section 6 or the award under Section 11 of the Act in reference to the self-same acquisition proceedings initiated under Section 4 followed with Section 6 of the Act but if there is a stay of the proceedings by a Court of law in any of the matter, that certainly prevents the authorities in taking its decision to complete the acquisition proceedings within the statutory period as mandated by law in passing of award within two years from the date of declaration under Section 6 of the Act. 7.8 In meeting out a complex situation, the conclusion which emerges is that if there is any stay over the action or proceeding by a Court of law, in one or the other matter arising from the self- same acquisition proceedings in reference to Section 4 followed with Section 6 of the Act, the authorities are said to be justified in the given facts and circumstances to stay their hands and await the decision of the Court and such a period during which there is a stay over the action or proceeding by a Court of law in a matter, that has to be excluded for all practical purposes, in computing the statutory period of two years in passing of an award under Section 11 of the Act. 8. Applying the aforesaid principles of law to the facts of the case on hand and considering the fact that there was a stay granted by the High Court in writ petition Nos. 3051/2013 and 3159/2013 against declaring the final award and the said writ petitions were with respect to the lands acquired of the very village under the very notification and for the very project and there was stay of possession in writ petition no. 7867/2012 during the pendency of the said petition, the period during which the aforesaid stay/s was/were operative is to be excluded and if the said period is excluded, in that case, the acquisition proceedings would not lapse, considering explanation to Section 11A of the Act. Under the circumstances, the High Court has erred in quashing and setting aside the acquisition proceedings on the ground that the same have lapsed as the award was not declared within a period of two years from the date of declaration under Section 6 of the Act. The High Court has committed a grave error in not excluding the period of interim stay granted by it in writ petition nos. 3051/2013 and 3159/2013. As observed hereinabove, even grant of interim stay of possession would also save lapsing of the acquisition.
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### Explanation:
the way of the authorities to proceedExplanation to Section 11A of the Act is in the widest possible terms and there is no warrant for limiting the action or proceedings, referred to in the explanation, to actions or proceedings preceding the making of the award under Section 11 of the Act and therefore the period of injunction obtained by the land holders staying the acquisition and authorities from taking possession of the land has to be excluded in computing the period of twoNow so far as submission on behalf of the original writ petitioners that when subsequently the award was declared, the lands with respect to Writ Petition Nos. 3051/2013 and 3159/2013 were excluded and therefore the decision of this Court in the case of Raj Kumar Gandhi (supra) shall not be applicable has no substance. Merely because to avoid contempt proceedings and/or in view of the stay granted in the aforesaid two writ petitions which was continued subsequently till the representations are considered, the authorities excluded the lands for which writ petitions were filed, it cannot be said that the period during which the stay was operating in Writ Petition Nos. 3051/2013 and 3159/2013 shall not be excluded. The words ?stay of the action or proceedings under Section 11A of the Act? would mean that any order of stay in one or the other matter if passed by Court of law, which either prohibits or prevents the State authorities from passing of an award, such a period of stay of action/proceedings deserves to be excluded while computing the statutory period of two years in passing of an award by the authority under Section 11 of the Act. Even otherwise, as observed hereinabove, there was already a stay of possession in Writ Petition No. 7867/2012 and therefore even otherwise the authorities were justified in not proceeding further with the acquisition proceedings.Applying the aforesaid principles of law to the facts of the case on hand and considering the fact that there was a stay granted by the High Court in writ petition Nos. 3051/2013 and 3159/2013 against declaring the final award and the said writ petitions were with respect to the lands acquired of the very village under the very notification and for the very project and there was stay of possession in writ petition no. 7867/2012 during the pendency of the said petition, the period during which the aforesaid stay/s was/were operative is to be excluded and if the said period is excluded, in that case, the acquisition proceedings would not lapse, considering explanation to Section 11A of the Act. Under the circumstances, the High Court has erred in quashing and setting aside the acquisition proceedings on the ground that the same have lapsed as the award was not declared within a period of two years from the date of declaration under Section 6 of the Act. The High Court has committed a grave error in not excluding the period of interim stay granted by it in writ petition nos. 3051/2013 and 3159/2013. As observed hereinabove, even grant of interim stay of possession would also save lapsing of theNow so far as the appeal arising out of the impugned judgment and order passed by the High Court in Writ Petition No. 7867/2012 is concerned, immediately on publication of the notification under Section 4 of the Act, the original writ petitioners challenged the acquisition proceedings including the notification under Section 4 of the Act. The High Court passed the interim order directing that the possession of the original writ petitioners shall not be disturbed. Simultaneously, the other land owners whose lands were acquired under the very same notification and of the very village Asarjan and acquired for the very project also challenged the acquisition proceedings by filing Writ Petition Nos. 3051/2013 and 3159/2013. The High Court granted stay to the acquisition proceedings on 12.11.2013 which subsequently came to be modified and it was directed that the final award shall not be declared. Other two writ petitions being Writ Petition Nos. 10894/2016 and 9088/2016 were filed after the award was declared under Section 11 of the Act challenging the acquisition proceedings on the ground that the same have been lapsed under Section 11A of the Act as the award has not been declared within a period of two years. The State authorities pleaded for extension of time during which the stay was operating in writ petition nos. 3051/2013 and 3159/2013. It has not been accepted by the High Court on the ground that the stay of the acquisition proceedings was granted not relating to the writ petitioners but was with respect to the other landIt is true that there is no bar to have more than one declaration under Section 6 or the award under Section 11 of the Act in reference to the self-same acquisition proceedings initiated under Section 4 followed with Section 6 of the Act but if there is a stay of the proceedings by a Court of law in any of the matter, that certainly prevents the authorities in taking its decision to complete the acquisition proceedings within the statutory period as mandated by law in passing of award within two years from the date of declaration under Section 6 of theIn meeting out a complex situation, the conclusion which emerges is that if there is any stay over the action or proceeding by a Court of law, in one or the other matter arising from the self- same acquisition proceedings in reference to Section 4 followed with Section 6 of the Act, the authorities are said to be justified in the given facts and circumstances to stay their hands and await the decision of the Court and such a period during which there is a stay over the action or proceeding by a Court of law in a matter, that has to be excluded for all practical purposes, in computing the statutory period of two years in passing of an award under Section 11 of the Act.
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Mrs. Chandnee Widya Vati Madden Vs. Dr. C. L. Katiai, & Others | the proper authorities for the necessary permission but withdrew her application to the Chief Commissioner by her letter dated April 12, 1957. The plaintiffs called upon the defendant several times to fulfil her part of the agreement but she failed to do so. It was averred on behalf of the plaintiffs that they had always been ready and winding to perform their part of the contract and that it was the defendant who had backed out of it. Hence, the suit for specific performance of the contract for sale or in the alternative for damages amounting to Rs. 51,100/-. The suit was contested on a large number of grounds of which it is necessary now to take notice only of the plea on which issue No. 8 was joined. Issue No. 8 is as follows :"(8) Is the contract contingent or impossible of performance and is uncertain and vague and is therefore void?The other material issues were concurrently decided in favour of the plaintiffs, and, therefore, need not be referred to.2. The trial Court in a very elaborate judgment dismissed the suit for specific performance of contract and for a permanent injunction and decreed the sum of Rs. 11550/- by way of damages, with proportionate costs, against the defendant. Though the Court found that the plaintiffs had been throughout ready and willing, indeed anxious, to perform their part of the contract, and that it was the defendant who backed out of it, it refused the main relief of specific performance of the contract on the ground that the agreement was inchoate in view of the fact that the previous sanction of the Chief Commissioner to the proposed transfer had not been obtained.3. The High Court on appeal came to the conclusion that the agreement was completed contract for sale of the house in question, subject to the sanction of the Chief Commissioner before the sale transaction could be concluded, but that the Trial Court was in error in holding that the agreement was inchoate, and that therefore, no decree for specific performance of the contract could be granted. The High Court relied mainly on the decision of their Lordships of the Judicial Committee of the Privy Council in Motilal v. Nanhelal, 57 Ind App 333 : (AIR 1930 PC 287 ) for coming to the conclusion that there was a completed contract between the parties and that the condition in the agreement that the vendor would obtain the sanction of the Chief Commissioner to the transaction of sale did not render the contract incomplete. In pursuance of that term in the agreement, the vendor had to obtain the sanction of the Chief Commissioner and as she had withdrawn her application for the necessary sanction, she was to blame for not having carried out her part of the contract. She had to make an application for the necessary permission. The High Court also pointed out that if the Chief Commissioner ultimately refused to grant the sanction to sale, the plaintiff may not be able to enforce the decree for specific performance of the contract but that was no bar to the Court passing a decree for that relief. Though it was not necessary in the view the High Court took of the rights of the parties, it recorded a finding that a sum of Rs. 5,775/- would be the appropriate amount of damages in the event of the plaintiffs not succeeding in getting their main relief for specific performance of the contract.4. The main ground of attack on this appeal is that the contract is not enforceable being of a contingent nature and the contingency not having been fulfilled. In our opinion, there is no substance in this contention. So far as the parties to the contract are concerned, they had agree to bind themselves by the terms of the document executed between them. Under that document it was for the defendant-vendor to make the necessary application for the permission to the Chief Commissioner. She had as a matter of fact made such an application but for reasons of her own decided to withdraw the same. On the findings that the plaintiffs have always been ready and willing to perform their part of the contract, and that it was the defendant who wilfully refused to perform her part of the contract, and that time was not of the essence of the contract, the Court has got to enforce the terms of the contract and to enjoin upon the defendant-appellant to make the necessary application to the Chief Commissioner. It will be for the Chief Commissioner to decide whether or not to grant the necessary sanction.5. In this view of the matter, the High Court was entirely correct in decreeing the suit for specific performance of the contract. The High Court should have further directed the defendant to the Chief Commissioner, which was implied in the contract between the parties. As the defendant vendor, without any sufficient reasons, withdrew the application already made to the Chief Commissioner, the decree to be prepared by this Court will add the clause that the defendant within one month from to-day shall make the necessary application to the Chief Commissioner or to such other competent authority as may have been empowered to grant the necessary sanction to transfers like the one in question, and further that within one month of the plaintiffs the property in suit. In the event of the sanction being refused, the plaintiffs shall be entitled to the damages as decreed by the High Court. The appellant sought to raise certain other pleas which had not been raised in the High Court; for example, that this was not a fit case in which specific performance of contract should be enforced by the Court. This plea was not specifically raised in the High Court and the necessary facts were not pleaded in the pleadings. It is manifest that this Court should not allow such a plea to be raised here for the first time. | 0[ds]So far as the parties to the contract are concerned, they had agree to bind themselves by the terms of the document executed between them. Under that document it was for the defendant-vendor to make the necessary application for the permission to the Chief Commissioner. She had as a matter of fact made such an application but for reasons of her own decided to withdraw the same. On the findings that the plaintiffs have always been ready and willing to perform their part of the contract, and that it was the defendant who wilfully refused to perform her part of the contract, and that time was not of the essence of the contract, the Court has got to enforce the terms of the contract and to enjoin upon the defendant-appellant to make the necessary application to the Chief Commissioner. It will be for the Chief Commissioner to decide whether or not to grant the necessary sanction.In this view of the matter, the High Court was entirely correct in decreeing the suit for specific performance of the contract. The High Court should have further directed the defendant to the Chief Commissioner, which was implied in the contract between the parties. As the defendant vendor, without any sufficient reasons, withdrew the application already made to the Chief Commissioner, the decree to be prepared by this Court will add the clause that the defendant within one month from to-day shall make the necessary application to the Chief Commissioner or to such other competent authority as may have been empowered to grant the necessary sanction to transfers like the one in question, and further that within one month of the plaintiffs the property in suit. In the event of the sanction being refused, the plaintiffs shall be entitled to the damages as decreed by the High Court. The appellant sought to raise certain other pleas which had not been raised in the High Court; for example, that this was not a fit case in which specific performance of contract should be enforced by the Court. This plea was not specifically raised in the High Court and the necessary facts were not pleaded in the pleadings. It is manifest that this Court should not allow such a plea to be raised here for the first time. | 0 | 1,277 | 409 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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the proper authorities for the necessary permission but withdrew her application to the Chief Commissioner by her letter dated April 12, 1957. The plaintiffs called upon the defendant several times to fulfil her part of the agreement but she failed to do so. It was averred on behalf of the plaintiffs that they had always been ready and winding to perform their part of the contract and that it was the defendant who had backed out of it. Hence, the suit for specific performance of the contract for sale or in the alternative for damages amounting to Rs. 51,100/-. The suit was contested on a large number of grounds of which it is necessary now to take notice only of the plea on which issue No. 8 was joined. Issue No. 8 is as follows :"(8) Is the contract contingent or impossible of performance and is uncertain and vague and is therefore void?The other material issues were concurrently decided in favour of the plaintiffs, and, therefore, need not be referred to.2. The trial Court in a very elaborate judgment dismissed the suit for specific performance of contract and for a permanent injunction and decreed the sum of Rs. 11550/- by way of damages, with proportionate costs, against the defendant. Though the Court found that the plaintiffs had been throughout ready and willing, indeed anxious, to perform their part of the contract, and that it was the defendant who backed out of it, it refused the main relief of specific performance of the contract on the ground that the agreement was inchoate in view of the fact that the previous sanction of the Chief Commissioner to the proposed transfer had not been obtained.3. The High Court on appeal came to the conclusion that the agreement was completed contract for sale of the house in question, subject to the sanction of the Chief Commissioner before the sale transaction could be concluded, but that the Trial Court was in error in holding that the agreement was inchoate, and that therefore, no decree for specific performance of the contract could be granted. The High Court relied mainly on the decision of their Lordships of the Judicial Committee of the Privy Council in Motilal v. Nanhelal, 57 Ind App 333 : (AIR 1930 PC 287 ) for coming to the conclusion that there was a completed contract between the parties and that the condition in the agreement that the vendor would obtain the sanction of the Chief Commissioner to the transaction of sale did not render the contract incomplete. In pursuance of that term in the agreement, the vendor had to obtain the sanction of the Chief Commissioner and as she had withdrawn her application for the necessary sanction, she was to blame for not having carried out her part of the contract. She had to make an application for the necessary permission. The High Court also pointed out that if the Chief Commissioner ultimately refused to grant the sanction to sale, the plaintiff may not be able to enforce the decree for specific performance of the contract but that was no bar to the Court passing a decree for that relief. Though it was not necessary in the view the High Court took of the rights of the parties, it recorded a finding that a sum of Rs. 5,775/- would be the appropriate amount of damages in the event of the plaintiffs not succeeding in getting their main relief for specific performance of the contract.4. The main ground of attack on this appeal is that the contract is not enforceable being of a contingent nature and the contingency not having been fulfilled. In our opinion, there is no substance in this contention. So far as the parties to the contract are concerned, they had agree to bind themselves by the terms of the document executed between them. Under that document it was for the defendant-vendor to make the necessary application for the permission to the Chief Commissioner. She had as a matter of fact made such an application but for reasons of her own decided to withdraw the same. On the findings that the plaintiffs have always been ready and willing to perform their part of the contract, and that it was the defendant who wilfully refused to perform her part of the contract, and that time was not of the essence of the contract, the Court has got to enforce the terms of the contract and to enjoin upon the defendant-appellant to make the necessary application to the Chief Commissioner. It will be for the Chief Commissioner to decide whether or not to grant the necessary sanction.5. In this view of the matter, the High Court was entirely correct in decreeing the suit for specific performance of the contract. The High Court should have further directed the defendant to the Chief Commissioner, which was implied in the contract between the parties. As the defendant vendor, without any sufficient reasons, withdrew the application already made to the Chief Commissioner, the decree to be prepared by this Court will add the clause that the defendant within one month from to-day shall make the necessary application to the Chief Commissioner or to such other competent authority as may have been empowered to grant the necessary sanction to transfers like the one in question, and further that within one month of the plaintiffs the property in suit. In the event of the sanction being refused, the plaintiffs shall be entitled to the damages as decreed by the High Court. The appellant sought to raise certain other pleas which had not been raised in the High Court; for example, that this was not a fit case in which specific performance of contract should be enforced by the Court. This plea was not specifically raised in the High Court and the necessary facts were not pleaded in the pleadings. It is manifest that this Court should not allow such a plea to be raised here for the first time.
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### Explanation:
So far as the parties to the contract are concerned, they had agree to bind themselves by the terms of the document executed between them. Under that document it was for the defendant-vendor to make the necessary application for the permission to the Chief Commissioner. She had as a matter of fact made such an application but for reasons of her own decided to withdraw the same. On the findings that the plaintiffs have always been ready and willing to perform their part of the contract, and that it was the defendant who wilfully refused to perform her part of the contract, and that time was not of the essence of the contract, the Court has got to enforce the terms of the contract and to enjoin upon the defendant-appellant to make the necessary application to the Chief Commissioner. It will be for the Chief Commissioner to decide whether or not to grant the necessary sanction.In this view of the matter, the High Court was entirely correct in decreeing the suit for specific performance of the contract. The High Court should have further directed the defendant to the Chief Commissioner, which was implied in the contract between the parties. As the defendant vendor, without any sufficient reasons, withdrew the application already made to the Chief Commissioner, the decree to be prepared by this Court will add the clause that the defendant within one month from to-day shall make the necessary application to the Chief Commissioner or to such other competent authority as may have been empowered to grant the necessary sanction to transfers like the one in question, and further that within one month of the plaintiffs the property in suit. In the event of the sanction being refused, the plaintiffs shall be entitled to the damages as decreed by the High Court. The appellant sought to raise certain other pleas which had not been raised in the High Court; for example, that this was not a fit case in which specific performance of contract should be enforced by the Court. This plea was not specifically raised in the High Court and the necessary facts were not pleaded in the pleadings. It is manifest that this Court should not allow such a plea to be raised here for the first time.
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Gemini Leather Stores Vs. Income Tax Officer, B-Ward, Agra & Others | to issue the notice. A learned single Judge of the High Court dismissed the writ petition and his order was affirmed in appeal by a Division Bench. The appeal to this Court is by the assessee on certificate granted by the High Court.2. The justification for taking action under Section 147 and 148 of the Income-tax Act. 1961 as stated by the Division Bench of the High Court is:"The firm utilised certain drafts for making purchases at Madras and Calcutta. These drafts represented undisclosed income of the firm. This aspect of the matter was not considered at the time of the original assessment. It is proposed to take this income into consideration for purposes of reassessment. The amounts, for which drafts were purchased by the firm were not recorded in the disclosed account of the firm. It is, therefore, proposed to tackle that income for purposes of reassessment."The learned single Judge took the view that the income-tax Officer did not apply his mind to the question as to whether the amounts invested in the purchase of the drafts could be treated as part of the total income of the assess, and as the assessee did not disclose the source of these amounts which were not recorded in the account books produced by the assessee, all the conditions for invoking the jurisdiction under Section 147 (a) were present. This was also the view taken by the Division Bench.3. It appears that the Income-tax Officer had written a detailed order in making his best judgment assessment. Having found out all about the drafts which were not mentioned in the assessees books of account, the Income-tax Officer gave the partners of the firm opportunity to explain the drafts. Referring to the statement of one of the partners. Shri Om Prakash, the Income-tax Officer observed in his order:"He has said that the drafts which were sent by him relating to Messrs. Gemini Leather Stores were entered in the books of the firm while other drafts which he has made would be of others whose name , he does not remember. As he is unable to tell to -whom other drafts sent by him relate in spite of specific opportunities given to him, the obvious inference is that moneys of the drafts are that of the firm with which he is connected."Referring to the circumstances in which these drafts had been sent or received the Income-tax Officer further observed:"Since these drafts have been sent or received in such circumstances and by such persons connected with the firm the conclusion is obvious that these drafts relate to the firm."4. It is not disputed that the case falls under clause (a) of Section 147. The question is whether the Income-tax Officer had reason to believe that income chargeable to tax had escaped assessment for the assessment year in question by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts. The law on the point has been settled by this Court in Calcutta Discount Co. Ltd, v. Income-tax officer, Companies District I. Calcutta. 41 ITR 191 = (AIR 1961 SC 372 ). The decision in Calcutta Discount Companys case is based on Section 34 of the Income-tax Act, 1922, the provisions of which correspond to those of Sections 147 and 148 of the Income-tax Act, l961; the points of departure from the old law are not material for the purpose of this case. The position is stated in Calcutta Discount Companys case as follows:"In every assessment proceeding the assessing authority will, for the purpose of computing or determining the proper tax due from an assessee, require to know all the facts which help him in coming to the correct conclusion. From the primary facts in his possession, whether on disclosure by the assessee or discovered by him on the basis of the facts disclosed or otherwise, the assessing authority has to draw inferences as regards certain other facts; and ultimately from the primary facts and the further facts inferred from them the authority has to draw the proper legal inferences ............ Once all the primary facts are before the assessing authority, he requires no further assistance by way of disclosure. It is for him to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. It is not for somebody else - far less the assessee - to tell the assessing authority what inferences, whether of facts or law, should be drawn."The law laid down in Calcutta Discount Companys case has been restated in several subsequent decisions of this Court: Commr, of Income-tax, West Bengal v. Hemchandra Kar, 77 ITR 1 = (AIR 1971 SC 2331 = 1971 Tax LR 1541): Commr. of Income-tax. Gujarat v. Bhanji Lavji, 79 ITR 582 = (AIR 1971 SC 717 = 1971 Tax LR 77); Commr: of Income-tax. Calcutta v. Burlop Dealers Ltd., 79 ITR 609 = (AIR 1971 SC 1635 = 1971 Tax LR 949) to name only a few.In the case before us the assessee did not disclose the transactions evidenced by the drafts which the Income-tax Officer discovered. After this discovery the Income-tax Officer had in his possession all the primary facts, and it was for him to make necessary enquiries and draw proper inferences as to whether the amounts invested in the purchase of the drafts could be treated as part of the total income of the assessee during the relevant year. This the Income-tax Officer did not do. It was plainly case of oversight, and it cannot be said that the income chargeable to tax for the relevant assessment year had escaped assessment by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts. The Income-tax Officer had all the material facts before him when he made the original assessment. He cannot now take recourse to Section 147 (a) to remedy the error resulting from his own oversight. | 1[ds]4. It is not disputed that the case falls under clause (a) of Section 147. Thequestion is whether theOfficer had reason to believe that income chargeable to tax had escaped assessmentfor the assessment yearin question by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts.The law on the point has been settled by this Court in Calcutta Discount Co. Ltd, v.officer, Companies District I. Calcutta. 41 ITR 191 = (AIR 1961 SC 372 ). The decision in Calcutta Discount Companys case is based on Section 34 of theAct, 1922, the provisions of which correspond to those of Sections 147 and 148 of theAct, l961; the points of departure from the old law are not material for the purpose of this case. The position is stated in Calcutta Discount Companys case as follows:"In every assessment proceeding the assessing authority will, for the purpose of computing or determining the proper tax due from an assessee, require to know all the facts which help him in coming to the correct conclusion. From the primary facts in his possession, whether on disclosure by the assessee or discovered by him on the basis of the facts disclosed or otherwise, the assessing authority has to draw inferences as regards certain other facts; and ultimately from the primary facts and the further facts inferred from them the authority has to draw the proper legal inferences ............ Once all the primary facts are before the assessing authority, he requires no further assistance by way of disclosure. It is for him to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. It is not for somebody elsefar less the assesseeto tell the assessing authority what inferences, whether of facts or law, should be drawn."The law laid down in Calcutta Discount Companys case has been restated in several subsequent decisions of this Court: Commr, ofWest Bengal v. Hemchandra Kar, 77 ITR 1 = (AIR 1971 SC 2331 = 1971 Tax LR 1541): Commr. ofGujarat v. Bhanji Lavji, 79 ITR 582 = (AIR 1971 SC 717 = 1971 Tax LR 77); Commr: ofCalcutta v. Burlop Dealers Ltd., 79 ITR 609 = (AIR 1971 SC 1635 = 1971 Tax LR 949) to name only a few.In the case before us the assessee did not disclose the transactions evidenced by the drafts which theOfficer discovered. After this discovery theOfficer had in his possession all the primary facts, and it was for him to make necessary enquiries and draw proper inferences as to whether the amounts invested in the purchase of the drafts could be treated as part of the total income of the assessee during the relevant year. This theOfficer did not do. It was plainly case of oversight, and it cannot be said that the income chargeable to tax for the relevant assessment year had escaped assessment by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts. TheOfficer had all the material facts before him when he made the original assessment. He cannot now take recourse to Section 147 (a) to remedy the error resulting from his own oversight. | 1 | 1,295 | 600 | ### 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:
to issue the notice. A learned single Judge of the High Court dismissed the writ petition and his order was affirmed in appeal by a Division Bench. The appeal to this Court is by the assessee on certificate granted by the High Court.2. The justification for taking action under Section 147 and 148 of the Income-tax Act. 1961 as stated by the Division Bench of the High Court is:"The firm utilised certain drafts for making purchases at Madras and Calcutta. These drafts represented undisclosed income of the firm. This aspect of the matter was not considered at the time of the original assessment. It is proposed to take this income into consideration for purposes of reassessment. The amounts, for which drafts were purchased by the firm were not recorded in the disclosed account of the firm. It is, therefore, proposed to tackle that income for purposes of reassessment."The learned single Judge took the view that the income-tax Officer did not apply his mind to the question as to whether the amounts invested in the purchase of the drafts could be treated as part of the total income of the assess, and as the assessee did not disclose the source of these amounts which were not recorded in the account books produced by the assessee, all the conditions for invoking the jurisdiction under Section 147 (a) were present. This was also the view taken by the Division Bench.3. It appears that the Income-tax Officer had written a detailed order in making his best judgment assessment. Having found out all about the drafts which were not mentioned in the assessees books of account, the Income-tax Officer gave the partners of the firm opportunity to explain the drafts. Referring to the statement of one of the partners. Shri Om Prakash, the Income-tax Officer observed in his order:"He has said that the drafts which were sent by him relating to Messrs. Gemini Leather Stores were entered in the books of the firm while other drafts which he has made would be of others whose name , he does not remember. As he is unable to tell to -whom other drafts sent by him relate in spite of specific opportunities given to him, the obvious inference is that moneys of the drafts are that of the firm with which he is connected."Referring to the circumstances in which these drafts had been sent or received the Income-tax Officer further observed:"Since these drafts have been sent or received in such circumstances and by such persons connected with the firm the conclusion is obvious that these drafts relate to the firm."4. It is not disputed that the case falls under clause (a) of Section 147. The question is whether the Income-tax Officer had reason to believe that income chargeable to tax had escaped assessment for the assessment year in question by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts. The law on the point has been settled by this Court in Calcutta Discount Co. Ltd, v. Income-tax officer, Companies District I. Calcutta. 41 ITR 191 = (AIR 1961 SC 372 ). The decision in Calcutta Discount Companys case is based on Section 34 of the Income-tax Act, 1922, the provisions of which correspond to those of Sections 147 and 148 of the Income-tax Act, l961; the points of departure from the old law are not material for the purpose of this case. The position is stated in Calcutta Discount Companys case as follows:"In every assessment proceeding the assessing authority will, for the purpose of computing or determining the proper tax due from an assessee, require to know all the facts which help him in coming to the correct conclusion. From the primary facts in his possession, whether on disclosure by the assessee or discovered by him on the basis of the facts disclosed or otherwise, the assessing authority has to draw inferences as regards certain other facts; and ultimately from the primary facts and the further facts inferred from them the authority has to draw the proper legal inferences ............ Once all the primary facts are before the assessing authority, he requires no further assistance by way of disclosure. It is for him to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. It is not for somebody else - far less the assessee - to tell the assessing authority what inferences, whether of facts or law, should be drawn."The law laid down in Calcutta Discount Companys case has been restated in several subsequent decisions of this Court: Commr, of Income-tax, West Bengal v. Hemchandra Kar, 77 ITR 1 = (AIR 1971 SC 2331 = 1971 Tax LR 1541): Commr. of Income-tax. Gujarat v. Bhanji Lavji, 79 ITR 582 = (AIR 1971 SC 717 = 1971 Tax LR 77); Commr: of Income-tax. Calcutta v. Burlop Dealers Ltd., 79 ITR 609 = (AIR 1971 SC 1635 = 1971 Tax LR 949) to name only a few.In the case before us the assessee did not disclose the transactions evidenced by the drafts which the Income-tax Officer discovered. After this discovery the Income-tax Officer had in his possession all the primary facts, and it was for him to make necessary enquiries and draw proper inferences as to whether the amounts invested in the purchase of the drafts could be treated as part of the total income of the assessee during the relevant year. This the Income-tax Officer did not do. It was plainly case of oversight, and it cannot be said that the income chargeable to tax for the relevant assessment year had escaped assessment by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts. The Income-tax Officer had all the material facts before him when he made the original assessment. He cannot now take recourse to Section 147 (a) to remedy the error resulting from his own oversight.
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### Explanation:
4. It is not disputed that the case falls under clause (a) of Section 147. Thequestion is whether theOfficer had reason to believe that income chargeable to tax had escaped assessmentfor the assessment yearin question by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts.The law on the point has been settled by this Court in Calcutta Discount Co. Ltd, v.officer, Companies District I. Calcutta. 41 ITR 191 = (AIR 1961 SC 372 ). The decision in Calcutta Discount Companys case is based on Section 34 of theAct, 1922, the provisions of which correspond to those of Sections 147 and 148 of theAct, l961; the points of departure from the old law are not material for the purpose of this case. The position is stated in Calcutta Discount Companys case as follows:"In every assessment proceeding the assessing authority will, for the purpose of computing or determining the proper tax due from an assessee, require to know all the facts which help him in coming to the correct conclusion. From the primary facts in his possession, whether on disclosure by the assessee or discovered by him on the basis of the facts disclosed or otherwise, the assessing authority has to draw inferences as regards certain other facts; and ultimately from the primary facts and the further facts inferred from them the authority has to draw the proper legal inferences ............ Once all the primary facts are before the assessing authority, he requires no further assistance by way of disclosure. It is for him to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. It is not for somebody elsefar less the assesseeto tell the assessing authority what inferences, whether of facts or law, should be drawn."The law laid down in Calcutta Discount Companys case has been restated in several subsequent decisions of this Court: Commr, ofWest Bengal v. Hemchandra Kar, 77 ITR 1 = (AIR 1971 SC 2331 = 1971 Tax LR 1541): Commr. ofGujarat v. Bhanji Lavji, 79 ITR 582 = (AIR 1971 SC 717 = 1971 Tax LR 77); Commr: ofCalcutta v. Burlop Dealers Ltd., 79 ITR 609 = (AIR 1971 SC 1635 = 1971 Tax LR 949) to name only a few.In the case before us the assessee did not disclose the transactions evidenced by the drafts which theOfficer discovered. After this discovery theOfficer had in his possession all the primary facts, and it was for him to make necessary enquiries and draw proper inferences as to whether the amounts invested in the purchase of the drafts could be treated as part of the total income of the assessee during the relevant year. This theOfficer did not do. It was plainly case of oversight, and it cannot be said that the income chargeable to tax for the relevant assessment year had escaped assessment by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts. TheOfficer had all the material facts before him when he made the original assessment. He cannot now take recourse to Section 147 (a) to remedy the error resulting from his own oversight.
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P. CHIDAMBARAM Vs. DIRECTORATE OF ENFORCEMENT | record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran (2007) 4 SCC 434 , State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain (2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal (2008) 13 SCC 305. )? Economic Offences:- 76. Power under Section 438 Cr.P.C. being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain (1998) 2 SCC 105 , it was held that in economic offences, the accused is not entitled to anticipatory bail. 77. The learned Solicitor General submitted that the ?Scheduled offence? and ?offence of money laundering? are independent of each other and PMLA being a special enactment applicable to the offence of money laundering is not a fit case for grant of anticipatory bail. The learned Solicitor General submitted that money laundering being an economic offence committed with much planning and deliberate design poses a serious threat to the nation?s economy and financial integrity and in order to unearth the laundering and trail of money, custodial interrogation of the appellant is necessary. 78. Observing that economic offence is committed with deliberate design with an eye on personal profit regardless to the consequence to the community, in State of Gujarat v. Mohanlal Jitamalji Porwal and others (1987) 2 SCC 364 , it was held as under:- ?5. ….The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest…..? 79. Observing that economic offences constitute a class apart and need to be visited with different approach in the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI (2013) 7 SCC 439 , the Supreme Court held as under:- ?34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.? [underlining added] 80. Referring to Dukhishyam Benupani, Assistant Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria (1998) 1 SCC 52 , in Enforcement Officer, Ted, Bombay v. Bher Chand Tikaji Bora and others (1999) 5 SCC 720 , while hearing an appeal by the Enforcement Directorate against the order of the Single Judge of the Bombay High Court granting anticipatory bail to the respondent thereon, the Supreme Court set aside the order of the Single Judge granting anticipatory bail. 81. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent-Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail.82. In a case of money-laundering where it involves many stages of ?placement?, ?layering i.e. funds moved to other institutions to conceal origin? and ?interrogation i.e. funds used to acquire various assets?, it requires systematic and analysed investigation which would be of great advantage. As held in Anil Sharma, success in such interrogation would elude if the accused knows that he is protected by a pre-arrest bail order. Section 438 Cr.P.C. is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. In the case in hand, there are allegations of laundering the proceeds of the crime. The Enforcement Directorate claims to have certain specific inputs from various sources, including overseas banks. Letter rogatory is also said to have been issued and some response have been received by the department. Having regard to the nature of allegations and the stage of the investigation, in our view, the investigating agency has to be given sufficient freedom in the process of investigation. Though we do not endorse the approach of the learned Single Judge in extracting the note produced by the Enforcement Directorate, we do not find any ground warranting interference with the impugned order. Considering the facts and circumstances of the case, in our view, grant of anticipatory bail to the appellant will hamper the investigation and this is not a fit case for exercise of discretion to grant anticipatory bail to the appellant. | 0[ds]29. The term ?reason to believe? is not defined in PMLA. The expression ?reason to believe? has been defined in Section 26 of IPC. As per the definition in Section 26 IPC, a person is said to have ?reason to believe? a thing, if he has sufficient cause to believe that thing but not otherwise. The specified officer must have ?reason to believe? on the basis of material in his possession that the property sought to be attached is likely to be concealed, transferred or dealt with in a manner which may result in frustrating any proceedings for confiscation of their property under the Act. It is stated that in the present case, exercising power under Section 5 of the PMLA, the Adjudicating Authority had attached some of the properties of the appellant. Challenging the attachment, the appellant and others are said to have preferred appeal before the Appellate Tribunal and stay has been granted by the Appellate Authority and the said appeal is stated to be pending.30. As rightly submitted by the learned Solicitor General, sufficient safeguards are provided under the provisions of PMLA. Under Section 5 of PMLA, the Director or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of Section 5 who passed the impugned order is required to have ?reason to believe? that the properties sought to be attached would be transferred or dealt with in a manner which would frustrate the proceedings relating to confiscation of such properties. Further, the officer who passed the order of attachment is required to record the reasons for such belief. The provisions of the PMLA and the Rules also provide for manner of forwarding a copy of the order of provisional attachment of property along with material under sub-section (2) of Section 5 of PMLA to the Adjudicating Authority.As rightly submitted by Mr. Tushar Mehta, the procedure under PMLA for arrest ensures sufficient safeguards viz.:- (i) only the specified officers are authorised to arrest; (ii) based on ?reasons to believe? that an offence punishable under the Act has been committed; (iii) the reasons for such belief to be recorded in writing; (iv) evidence and the material submitted to the Adjudicating Authority in sealed envelope in the manner as may be prescribed ensuring the safeguards in maintaining the confidentiality; and (v) every person arrested under PMLA to be produced before the Judicial Magistrate or Metropolitan Magistrate within 24 hours. Section 19 of PMLA provides for the power to arrest to the specified officer on the basis of material in his possession and has ?reason to believe? and the ?reasons for such belief to be recorded in writing? that any person has been guilty of an offence punishable under PMLA. The statutory power has been vested upon the specified officers of higher rank to arrest the person whom the officer has ?reason to believe? that such person has been guilty of an offence punishable under PMLA. In cases of PMLA, in exercising the power to grant anticipatory bail would be to scuttle the statutory power of the specified officers to arrest which is enshrined in the statute with sufficient safeguards.As rightly submitted by Mr. Tushar Mehta, the procedure under PMLA for arrest ensures sufficient safeguards viz.:- (i) only the specified officers are authorised to arrest; (ii) based on ?reasons to believe? that an offence punishable under the Act has been committed; (iii) the reasons for such belief to be recorded in writing; (iv) evidence and the material submitted to the Adjudicating Authority in sealed envelope in the manner as may be prescribed ensuring the safeguards in maintaining the confidentiality; and (v) every person arrested under PMLA to be produced before the Judicial Magistrate or Metropolitan Magistrate within 24 hours. Section 19 of PMLA provides for the power to arrest to the specified officer on the basis of material in his possession and has ?reason to believe? and the ?reasons for such belief to be recorded in writing? that any person has been guilty of an offence punishable under PMLA. The statutory power has been vested upon the specified officers of higher rank to arrest the person whom the officer has ?reason to believe? that such person has been guilty of an offence punishable under PMLA. In cases of PMLA, in exercising the power to grant anticipatory bail would be to scuttle the statutory power of the specified officers to arrest which is enshrined in the statute with sufficient safeguards.Insofar as the issue of grant of bail is concerned, Section 45 of PMLA starts with non-obstante clause. Section 45 imposes two conditions for grant of bail to any person accused of any offence punishable for a term of imprisonment of more than three years under Part-A of the Schedule of the Act viz., (i) that the prosecutor must be given an opportunity to oppose the application for such bail; (ii) that the court must be satisfied that there are reasonable grounds for believing that the accused persons is not guilty of such offence and that he is not likely to commit any offence while on bail.The occurrence was of the year 2007-2008. CBI registered the case against Sh. Karti Chidambaram, the appellant and others on 15.05.2017 under Sections 120-B IPC read with Section 420 IPC and under Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act.Under Article 20(1) of the Constitution, no person shall be convicted of any offence except for violation of law in force at the time of commission of that act charged as an offence. FIR for the predicate offence has been registered by CBI under Section 120B IPC, 420 IPC and Section 13 of the Prevention of Corruption Act and also under Section 8 of the Prevention of Corruption Act. As discussed earlier, Section 120B IPC and Section 420 IPC were included in Part A of the Schedule only by Amendment Act 21 of 2009 w.e.f. 01.06.2009. Section 13 of the Prevention of Corruption Act was included in Part A of the Schedule by Amendment Act 16 of 2018 w.e.f. 26.07.2018. Section 8 of the Prevention of Corruption Act is punishable with imprisonment extending upto seven years. Section 8 of the Prevention of Corruption Act was very much available in Part A of the Schedule of PMLA at the time of alleged commission of offence in 2007-2008. It cannot therefore be said that the appellant is proceeded against in violation of Article 20(1) of the Constitution of India for the alleged commission of the acts which was not an offence as per law then in existence. The merits of the contention that Section 8 of the Prevention of Corruption Act cannot be the predicate offence qua the appellant, cannot be gone into at this stage when this Court is only considering the prayer for anticipatory bail.42. Yet another contention advanced on behalf of the appellant is that minimum threshold for the Enforcement Directorate to acquire jurisdiction at the relevant time was Rs.30 lakhs whereas, in the present case, there is no material to show any payment apart from the sum of Rs.10 lakhs (approximately) allegedly paid by INX Media to ASCPL with which the appellant is said to be having no connection whatsoever. The merits of the contention that Section 8 of the Prevention of Corruption Act (then included in Schedule A of the PMLA in 2007-08) whether attracted or not and whether the Enforcement Directorate had the threshold to acquire jurisdiction under PMLA cannot be considered at this stage while this Court is considering only the prayer for anticipatory bail.43. In terms of Section 4 of the PMLA, the offence of money-laundering is punishable with rigorous imprisonment for a term not less than three years extending to seven years and with fine. The Second Schedule to the Criminal Procedure Code relates to classification of offences against other laws and in terms of the Second Schedule of the Code, an offence which is punishable with imprisonment for three years and upward but not more than seven years is a cognizable and non-bailable offence. Thus, Section 4 of the Act read with the Second Schedule of the Code makes it clear that the offences under the PMLA are cognizable offences. As pointed out earlier, Section 8 of the Prevention of Corruption Act was then found a mention in Part ‘A? of the Schedule (Paragraph 8). Section 8 of the Prevention of Corruption Act is punishable for a term extending to seven years. Thus, the essential requirement of Section 45 of PMLA?accused of an offence punishable for a term of imprisonment of more than three years under Part ‘A? of the Schedule?is satisfied making the offence under PMLA. There is no merit in the contention of the appellant that very registration of the FIR against the appellant under PMLA is not maintainable.It is seen from various judgments that on several instances, court always received and perused the case diaries/materials collected by the prosecution during investigation to satisfy itself as to whether the investigation is proceeding in the right direction or for consideration of the question of grant of bail etc.So far as the production of the case diary during trial and reference to the same by the court and the interdict against accused to call for case diary is governed by Section 172 Cr.P.C. As per sub-section (3) of Section 172, neither the accused nor his agent is entitled to call for such case diaries and also not entitled to see them during the course of enquiry or trial. The case diaries can be used for refreshing memory by the investigating officer and court can use it for the purpose of contradicting such police officer as per provisions of Section 161 or Section 145 of the Indian Evidence Act. Unless the investigating officer or the court so uses the case diary either to refresh the memory or for contradicting the investigating officer as previous statement under Section 161, after drawing his attention under Section 145, the entries in case diary cannot be used by the accused as evidence (vide Section 172(3) Cr.P.C.).53. It is well-settled that the court can peruse the case diary/materials collected during investigation by the prosecution even before the commencement of the trial inter-alia in circumstances like:- (i) to satisfy its conscience as to whether the investigation is proceeding in the right direction; (ii) to satisfy itself that the investigation has been conducted in the right lines and that there is no misuse or abuse of process in the investigation; (iii) whether regular or anticipatory bail is to be granted to the accused or not; (iv) whether any further custody of the accused is required for the prosecution; (v) to satisfy itself as to the correctness of the decision of the High Court/trial court which is under challenge. The above instances are only illustrative and not exhaustive. Where the interest of justice requires, the court has the powers, to receive the case diary/materials collected during the investigation. As held in Mukund Lal, ultimately there can be no better custodian or guardian of the interest of justice than the court trying the case. Needless to point out that when the Court has received and perused the documents/materials, it is only for the purpose of satisfaction of court?s conscience. In the initial stages of investigation, the Court may not extract or verbatim refer to the materials which the Court has perused (as has been done in this case by the learned Single Judge) and make observations which might cause serious prejudice to the accused in trial and other proceedings resulting in miscarriage of justice.54. The Enforcement Directorate has produced the sealed cover before us containing the materials collected during investigation and the same was received. Vide order dated 29.08.2019, we have stated that the receipt of the sealed cover would be subject to our finding whether the court can peruse the materials or not. As discussed earlier, we have held that the court can receive the materials/documents collected during the investigation and peruse the same to satisfy its conscience that the investigation is proceeding in the right lines and for the purpose of consideration of grant of bail/anticipatory bail etc. In the present case, though sealed cover was received by this Court, we have consciously refrained from opening the sealed cover and perusing the documents. Lest, if we peruse the materials collected by the respondent and make some observations thereon, it might cause prejudice to the appellant and the other co-accused who are not before this court when they are to pursue the appropriate relief before various forum. Suffice to note that at present, we are only at the stage of considering the pre-arrest bail. Since according to the respondent, they have collected documents/materials for which custodial interrogation of the appellant is necessary, which we deem appropriate to accept the submission of the respondent for the limited purpose of refusing pre-arrest bail to the appellant.55. Of course, while considering the request for anticipatory bail and while perusing the materials/note produced by the Enforcement Directorate/CBI, the learned Single Judge could have satisfied his conscience to hold that it is not a fit case for grant of anticipatory bail. On the other hand, the learned Single Judge has verbatim quoted the note produced by the respondent- Enforcement Directorate. The learned Single Judge, was not right in extracting the note produced by the Enforcement Directorate/CBI which in our view, is not a correct approach for consideration of grant/refusal of anticipatory bail. But such incorrect approach of the learned Single Judge, in our view, does not affect the correctness of the conclusion in refusing to grant of anticipatory bail to the appellant in view of all other aspects considered herein.Contention of the appellant that the court will have to scrutinise the questions put to the accused during interrogation and answers given by the appellant and satisfy itself whether the answers were ?evasive or not?, would amount to conducting ?mini trial? and substituting court?s view over the view of the investigating agency about the ?cooperation? or ?evasiveness? of the accused and thereafter, the court to decide the questions of grant of anticipatory bail. This contention is far-fetched and does not merit acceptance.58. As rightly submitted by learned Solicitor General that if the accused are to be confronted with the materials which were collected by the prosecution/Enforcement Directorate with huge efforts, it would lead to devastating consequences and would defeat the very purpose of the investigation into crimes, in particular, white collar offences. If the contention of the appellant is to be accepted, the investigating agency will have to question each and every accused such materials collected during investigation and in this process, the investigating agency would be exposing the evidence collected by them with huge efforts using their men and resources and this would give a chance to the accused to tamper with the evidence and to destroy the money trail apart from paving the way for the accused to influence the witnesses. If the contention of the appellant is to be accepted that the accused will have to be questioned with the materials and the investigating agency has to satisfy the court that the accused was ?evasive? during interrogation, the court will have to undertake a ?mini trial? of scrutinizing the matter at intermediary stages of investigation like interrogation of the accused and the answers elicited from the accused and to find out whether the answers given by the accused are ‘evasive? or whether they are ‘satisfactory? or not. This could have never been the intention of the legislature either under PMLA or any other statute.59. Interrogation of the accused and the answers elicited from the accused and the opinion whether the answers given by the accused are ?satisfactory? or ?evasive?, is purely within the domain of the investigating agency and the court cannot substitute its views by conducting mini trial at various stages of the investigation.60. The investigation of a cognizable offence and the various stages thereon including the interrogation of the accused is exclusively reserved for the investigating agency whose powers are unfettered so long as the investigating officer exercises his investigating powers well within the provisions of the law and the legal bounds. In exercise of its inherent power under Section 482 Cr.P.C., the court can interfere and issue appropriate direction only when the court is convinced that the power of the investigating officer is exercised mala fide or where there is abuse of power and non-compliance of the provisions of Code of Criminal Procedure. However, this power of invoking inherent jurisdiction to issue direction and interfering with the investigation is exercised only in rare cases where there is abuse of process or non-compliance of the provisions of Criminal Procedure Code.As held by the Supreme Court in a catena of judgments that there is a well-defined and demarcated function in the field of investigation and its subsequent adjudication. It is not the function of the court to monitor the investigation process so long as the investigation does not violate any provision of law. It must be left to the discretion of the investigating agency to decide the course of investigation. If the court is to interfere in each and every stage of the investigation and the interrogation of the accused, it would affect the normal course of investigation. It must be left to the investigating agency to proceed in its own manner in interrogation of the accused, nature of questions put to him and the manner of interrogation of the accused.65. It is one thing to say that if the power of investigation has been exercised by an investigating officer mala fide or non-compliance of the provisions of the Criminal Procedure Code in the conduct of the investigation, it is open to the court to quash the proceedings where there is a clear case of abuse of power. It is a different matter that the High Court in exercise of its inherent power under Section 482 Cr.P.C., the court can always issue appropriate direction at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by the investigating officer mala fide and not in accordance with the provisions of the Criminal Procedure Code. However, as pointed out earlier that power is to be exercised in rare cases where there is a clear abuse of power and non-compliance of the provisions falling under Chapter-XII of the Code of Criminal Procedure requiring the interference of the High Court. In the initial stages of investigation where the court is considering the question of grant of regular bail or pre-arrest bail, it is not for the court to enter into the demarcated function of the investigation and collection of evidence/materials for establishing the offence and interrogation of the accused and theof the appellant is that it has not been placed before the court as to what were the questions/aspects on which the appellant was interrogated on 19.12.2018, 01.01.2019 and 21.01.2019 and the Enforcement Directorate has not been able to show as to how the answers given by the appellant are ?evasive?. It was submitted that the investigating agency-Enforcement Directorate cannot expect the accused to give answers in the manner they want and the investigating agency should always keep in their mind the rights of the accused protected under Article 20(3) of the Constitution of India. Since the interrogation of the accused and the questions put to the accused and the answers given by the accused are part of the investigation which is purely within the domain of the investigation officer, unless satisfied that the police officer has improperly and illegally exercised his investigating powers in breach of any statutory provision, the court cannot interfere. In the present case, no direction could be issued to the respondent to produce the transcripts of the questions put to the appellant and answers given by the appellant.Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.We are conscious of the fact that the legislative intent behind the introduction of Section 438 Cr.P.C. is to safeguard the individual?s personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights - safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India.Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individual?s right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information.In Siddharam Satlingappa Mhetre v. State of Maharashtra and Others (2011) 1 SCC 694 , the Supreme Court laid down the factors and parameters to be considered while dealing with anticipatory bail. It was held that the nature and the gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made and that the court must evaluate the available material against the accused very carefully. It was also held that the court should also consider whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.75. After referring to Siddharam Satlingappa Mhetre and other judgments and observing that anticipatory bail can be granted only in exceptional circumstances, in Jai Prakash Singh v. State of Bihar and another (2012) 4 SCC 379 , the Supreme Court held asParameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran (2007) 4 SCC 434 , State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain (2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal (2008) 13 SCC 305. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent-Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail.82. In a case of money-laundering where it involves many stages of ?placement?,?layering i.e. funds moved to other institutions to conceal origin?and ?interrogation i.e. funds used to acquire various assets?, it requires systematic and analysed investigation which would be of great advantage. As held in Anil Sharma, success in such interrogation would elude if the accused knows that he is protected by a pre-arrest bail order. Section 438 Cr.P.C. is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. In the case in hand, there are allegations of laundering the proceeds of the crime. The Enforcement Directorate claims to have certain specific inputs from various sources, including overseas banks. Letter rogatory is also said to have been issued and some response have been received by the department. Having regard to the nature of allegations and the stage of the investigation, in our view, the investigating agency has to be given sufficient freedom in the process of investigation. Though we do not endorse the approach of the learned Single Judge in extracting the note produced by the Enforcement Directorate, we do not find any ground warranting interference with the impugned order. Considering the facts and circumstances of the case, in our view, grant of anticipatory bail to the appellant will hamper the investigation and this is not a fit case for exercise of discretion to grant anticipatory bail to the appellant.Referring to Dukhishyam Benupani, Assistant Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria (1998) 1 SCC 52 , in Enforcement Officer, Ted, Bombay v. Bher Chand Tikaji Bora and others (1999) 5 SCC 720 , while hearing an appeal by the Enforcement Directorate against the order of the Single Judge of the Bombay High Court granting anticipatory bail to the respondent thereon, the Supreme Court set aside the order of the Single Judge granting anticipatory bail.Power under Section 438 Cr.P.C. being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain (1998) 2 SCC 105 , it was held that in economic offences, the accused is not entitled to anticipatory bail. | 0 | 15,725 | 4,837 | ### Instruction:
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record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran (2007) 4 SCC 434 , State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain (2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal (2008) 13 SCC 305. )? Economic Offences:- 76. Power under Section 438 Cr.P.C. being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain (1998) 2 SCC 105 , it was held that in economic offences, the accused is not entitled to anticipatory bail. 77. The learned Solicitor General submitted that the ?Scheduled offence? and ?offence of money laundering? are independent of each other and PMLA being a special enactment applicable to the offence of money laundering is not a fit case for grant of anticipatory bail. The learned Solicitor General submitted that money laundering being an economic offence committed with much planning and deliberate design poses a serious threat to the nation?s economy and financial integrity and in order to unearth the laundering and trail of money, custodial interrogation of the appellant is necessary. 78. Observing that economic offence is committed with deliberate design with an eye on personal profit regardless to the consequence to the community, in State of Gujarat v. Mohanlal Jitamalji Porwal and others (1987) 2 SCC 364 , it was held as under:- ?5. ….The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest…..? 79. Observing that economic offences constitute a class apart and need to be visited with different approach in the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI (2013) 7 SCC 439 , the Supreme Court held as under:- ?34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.? [underlining added] 80. Referring to Dukhishyam Benupani, Assistant Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria (1998) 1 SCC 52 , in Enforcement Officer, Ted, Bombay v. Bher Chand Tikaji Bora and others (1999) 5 SCC 720 , while hearing an appeal by the Enforcement Directorate against the order of the Single Judge of the Bombay High Court granting anticipatory bail to the respondent thereon, the Supreme Court set aside the order of the Single Judge granting anticipatory bail. 81. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent-Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail.82. In a case of money-laundering where it involves many stages of ?placement?, ?layering i.e. funds moved to other institutions to conceal origin? and ?interrogation i.e. funds used to acquire various assets?, it requires systematic and analysed investigation which would be of great advantage. As held in Anil Sharma, success in such interrogation would elude if the accused knows that he is protected by a pre-arrest bail order. Section 438 Cr.P.C. is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. In the case in hand, there are allegations of laundering the proceeds of the crime. The Enforcement Directorate claims to have certain specific inputs from various sources, including overseas banks. Letter rogatory is also said to have been issued and some response have been received by the department. Having regard to the nature of allegations and the stage of the investigation, in our view, the investigating agency has to be given sufficient freedom in the process of investigation. Though we do not endorse the approach of the learned Single Judge in extracting the note produced by the Enforcement Directorate, we do not find any ground warranting interference with the impugned order. Considering the facts and circumstances of the case, in our view, grant of anticipatory bail to the appellant will hamper the investigation and this is not a fit case for exercise of discretion to grant anticipatory bail to the appellant.
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bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.We are conscious of the fact that the legislative intent behind the introduction of Section 438 Cr.P.C. is to safeguard the individual?s personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights - safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India.Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individual?s right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information.In Siddharam Satlingappa Mhetre v. State of Maharashtra and Others (2011) 1 SCC 694 , the Supreme Court laid down the factors and parameters to be considered while dealing with anticipatory bail. It was held that the nature and the gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made and that the court must evaluate the available material against the accused very carefully. It was also held that the court should also consider whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.75. After referring to Siddharam Satlingappa Mhetre and other judgments and observing that anticipatory bail can be granted only in exceptional circumstances, in Jai Prakash Singh v. State of Bihar and another (2012) 4 SCC 379 , the Supreme Court held asParameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran (2007) 4 SCC 434 , State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain (2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal (2008) 13 SCC 305. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent-Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail.82. In a case of money-laundering where it involves many stages of ?placement?,?layering i.e. funds moved to other institutions to conceal origin?and ?interrogation i.e. funds used to acquire various assets?, it requires systematic and analysed investigation which would be of great advantage. As held in Anil Sharma, success in such interrogation would elude if the accused knows that he is protected by a pre-arrest bail order. Section 438 Cr.P.C. is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. In the case in hand, there are allegations of laundering the proceeds of the crime. The Enforcement Directorate claims to have certain specific inputs from various sources, including overseas banks. Letter rogatory is also said to have been issued and some response have been received by the department. Having regard to the nature of allegations and the stage of the investigation, in our view, the investigating agency has to be given sufficient freedom in the process of investigation. Though we do not endorse the approach of the learned Single Judge in extracting the note produced by the Enforcement Directorate, we do not find any ground warranting interference with the impugned order. Considering the facts and circumstances of the case, in our view, grant of anticipatory bail to the appellant will hamper the investigation and this is not a fit case for exercise of discretion to grant anticipatory bail to the appellant.Referring to Dukhishyam Benupani, Assistant Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria (1998) 1 SCC 52 , in Enforcement Officer, Ted, Bombay v. Bher Chand Tikaji Bora and others (1999) 5 SCC 720 , while hearing an appeal by the Enforcement Directorate against the order of the Single Judge of the Bombay High Court granting anticipatory bail to the respondent thereon, the Supreme Court set aside the order of the Single Judge granting anticipatory bail.Power under Section 438 Cr.P.C. being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain (1998) 2 SCC 105 , it was held that in economic offences, the accused is not entitled to anticipatory bail.
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Dr. Jacob Thudipara Vs. The State of Madhya Pradesh & Ors | arose with respect to the age of superannuation/retirement, namely, whether, the appellant--teacher is entitled to get the benefits of enhanced age of superannuation of 65 years at par with his counterpart teachers serving in Government Colleges and Universities. 2.1 The appellant was serving in 1OO% government aided private educational institution. At the relevant time, the Full Bench of the High Court of Madhya Pradesh in the case of Dr. S.C. Jain Vs. State of Madhya Pradesh and others (W.A. No. 950/2015) took the view that the teachers serving in the aided private educational institutions are not entitled to get the benefit of enhanced age of superannuation of 65 years. The appellant and others filed Writ Appeals before the High Court which came to be dismissed, relying upon the case of Dr. S.C. Jain (supra). However, subsequently the decision of the Full Bench of the High Court in the case of Dr. S.C. Jain (supra) has been set aside by this Court vide judgment and order dated 07.05.2019 in C.A. No. 4675--4676 of 2019 in the case of Dr. R.S. Sohane Vs. State of M.P. & others; (2019) 16 SCC 796, and it is held that the teachers like the appellant are entitled to get the benefit of enhanced age of superannuation of 65 years. The parties to the aforesaid appeals filed M.A. Nos. 1838--1839 of 2019 with I.A. No. 119950 of 2019 before this Court claiming the payment of outstanding salaries for the intervening period. This Court disposed of the aforesaid interlocutory application and clarified that they can approach the High Court for redressal of their grievances with regard to the payment of outstanding salaries of intervening period. As observed hereinabove, the appeal preferred by the appellant before the High Court has been dismissed by the Division Bench of the High Court relying upon the decision of Full Court in the case of Dr. S.C. Jain (supra), which has subsequently been set aside by this Court. Therefore, it is the case on behalf of the appellant that he shall be entitled to continue up to enhanced age of superannuation i.e., 65 years and shall be entitled to all the monetary benefits as if, he would have been continued up to the age of 65 years. 2.2 Learned counsel appearing on behalf of the appellant has heavily relied upon the subsequent decision of the Division Bench of the High Court dated 29.11.2019 passed in Writ Appeal No. 1857/2019 filed by a similarly situated teacher of a government aided private college by which the Division Bench of the High Court has condoned 1227 days of delay in filing intra--court appeal and has held him entitled for superannuation with all consequential and monetary benefits including arrears of salaries and allowances of the intervening period, by following the law laid down by this Court in the case of Dr. R.S. Sohane (supra). 2.3 Learned counsel appearing on behalf of the appellant has also relied upon the common judgment and order dated 07.09.2021 passed by the Division Bench of the High Court in Writ Appeal No. 378/2018 and other allied appeals, by which, after the review applications were allowed, the aforesaid writ appeals were restored to the file and the Division Bench of the High Court has directed the State to pay all the consequential and monetary benefits to all similarly situated teachers and assistant professors for the intervening period between 62 years and 65 years of age. It is submitted that all similarly situated teachers are therefore, paid all consequential and monetary benefits for the period between 62 years and 65 years of age, as if they would have been continued up to 65 years of age. 3. Mrs. Mrinal Gopal Elker, learned counsel appearing on behalf of the respondent- State, as such, is not in a position to dispute the aforesaid factual aspects. However, she has tried to distinguish the facts by submitting that when this Court passed an order earlier to pay the salaries to them after they had completed the age of 62 years, all of them were directed to be taken on duty by way of an interim order and actually they worked up to the age of 65 years. In the present case, the appellant did not work and therefore on the principle of no work no pay, he is not entitled to any monetary benefits for the intervening period, between 62 years and 65 years of age. 4. Having heard learned counsel appearing on behalf of the respective parties and considering the various orders passed by the High Court, by which in similar facts and situation and not accepting the submission on behalf of the State that on the principle of no work no pay the teachers are not entitled to any monetary benefits for the intervening period between 62 years and 65 years of age, we are of the opinion that appellant shall be entitled to all consequential and monetary benefits including the arrears of salaries and allowances for the intervening period, as if he would have been retired at the age of 65 years. The appellant being similarly situated teacher cannot be singled out. Even in the case of Writ Appeal No. 378/2018 and other allied writ appeals, it was submitted by the State that on the principle of no work no pay such teachers are not entitled to any monetary benefits. However, the High Court vide detailed judgment and order has negated such a plea and defence and has observed that as the teachers were prevented from serving up to the age of 65 years though they were entitled to, as held by this Court in the case of Dr. R.S. Sohane (supra), they cannot be denied the monetary benefits for the intervening period. It is reported that the said judgment and order passed by the Division Bench of the High Court has been implemented by the State after the Special Leave Petition against the said judgment and order has been dismissed by this Court. | 1[ds]4. Having heard learned counsel appearing on behalf of the respective parties and considering the various orders passed by the High Court, by which in similar facts and situation and not accepting the submission on behalf of the State that on the principle of no work no pay the teachers are not entitled to any monetary benefits for the intervening period between 62 years and 65 years of age, we are of the opinion that appellant shall be entitled to all consequential and monetary benefits including the arrears of salaries and allowances for the intervening period, as if he would have been retired at the age of 65 years. The appellant being similarly situated teacher cannot be singled out. Even in the case of Writ Appeal No. 378/2018 and other allied writ appeals, it was submitted by the State that on the principle of no work no pay such teachers are not entitled to any monetary benefits. However, the High Court vide detailed judgment and order has negated such a plea and defence and has observed that as the teachers were prevented from serving up to the age of 65 years though they were entitled to, as held by this Court in the case of Dr. R.S. Sohane (supra), they cannot be denied the monetary benefits for the intervening period. It is reported that the said judgment and order passed by the Division Bench of the High Court has been implemented by the State after the Special Leave Petition against the said judgment and order has been dismissed by this Court. | 1 | 1,176 | 284 | ### Instruction:
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arose with respect to the age of superannuation/retirement, namely, whether, the appellant--teacher is entitled to get the benefits of enhanced age of superannuation of 65 years at par with his counterpart teachers serving in Government Colleges and Universities. 2.1 The appellant was serving in 1OO% government aided private educational institution. At the relevant time, the Full Bench of the High Court of Madhya Pradesh in the case of Dr. S.C. Jain Vs. State of Madhya Pradesh and others (W.A. No. 950/2015) took the view that the teachers serving in the aided private educational institutions are not entitled to get the benefit of enhanced age of superannuation of 65 years. The appellant and others filed Writ Appeals before the High Court which came to be dismissed, relying upon the case of Dr. S.C. Jain (supra). However, subsequently the decision of the Full Bench of the High Court in the case of Dr. S.C. Jain (supra) has been set aside by this Court vide judgment and order dated 07.05.2019 in C.A. No. 4675--4676 of 2019 in the case of Dr. R.S. Sohane Vs. State of M.P. & others; (2019) 16 SCC 796, and it is held that the teachers like the appellant are entitled to get the benefit of enhanced age of superannuation of 65 years. The parties to the aforesaid appeals filed M.A. Nos. 1838--1839 of 2019 with I.A. No. 119950 of 2019 before this Court claiming the payment of outstanding salaries for the intervening period. This Court disposed of the aforesaid interlocutory application and clarified that they can approach the High Court for redressal of their grievances with regard to the payment of outstanding salaries of intervening period. As observed hereinabove, the appeal preferred by the appellant before the High Court has been dismissed by the Division Bench of the High Court relying upon the decision of Full Court in the case of Dr. S.C. Jain (supra), which has subsequently been set aside by this Court. Therefore, it is the case on behalf of the appellant that he shall be entitled to continue up to enhanced age of superannuation i.e., 65 years and shall be entitled to all the monetary benefits as if, he would have been continued up to the age of 65 years. 2.2 Learned counsel appearing on behalf of the appellant has heavily relied upon the subsequent decision of the Division Bench of the High Court dated 29.11.2019 passed in Writ Appeal No. 1857/2019 filed by a similarly situated teacher of a government aided private college by which the Division Bench of the High Court has condoned 1227 days of delay in filing intra--court appeal and has held him entitled for superannuation with all consequential and monetary benefits including arrears of salaries and allowances of the intervening period, by following the law laid down by this Court in the case of Dr. R.S. Sohane (supra). 2.3 Learned counsel appearing on behalf of the appellant has also relied upon the common judgment and order dated 07.09.2021 passed by the Division Bench of the High Court in Writ Appeal No. 378/2018 and other allied appeals, by which, after the review applications were allowed, the aforesaid writ appeals were restored to the file and the Division Bench of the High Court has directed the State to pay all the consequential and monetary benefits to all similarly situated teachers and assistant professors for the intervening period between 62 years and 65 years of age. It is submitted that all similarly situated teachers are therefore, paid all consequential and monetary benefits for the period between 62 years and 65 years of age, as if they would have been continued up to 65 years of age. 3. Mrs. Mrinal Gopal Elker, learned counsel appearing on behalf of the respondent- State, as such, is not in a position to dispute the aforesaid factual aspects. However, she has tried to distinguish the facts by submitting that when this Court passed an order earlier to pay the salaries to them after they had completed the age of 62 years, all of them were directed to be taken on duty by way of an interim order and actually they worked up to the age of 65 years. In the present case, the appellant did not work and therefore on the principle of no work no pay, he is not entitled to any monetary benefits for the intervening period, between 62 years and 65 years of age. 4. Having heard learned counsel appearing on behalf of the respective parties and considering the various orders passed by the High Court, by which in similar facts and situation and not accepting the submission on behalf of the State that on the principle of no work no pay the teachers are not entitled to any monetary benefits for the intervening period between 62 years and 65 years of age, we are of the opinion that appellant shall be entitled to all consequential and monetary benefits including the arrears of salaries and allowances for the intervening period, as if he would have been retired at the age of 65 years. The appellant being similarly situated teacher cannot be singled out. Even in the case of Writ Appeal No. 378/2018 and other allied writ appeals, it was submitted by the State that on the principle of no work no pay such teachers are not entitled to any monetary benefits. However, the High Court vide detailed judgment and order has negated such a plea and defence and has observed that as the teachers were prevented from serving up to the age of 65 years though they were entitled to, as held by this Court in the case of Dr. R.S. Sohane (supra), they cannot be denied the monetary benefits for the intervening period. It is reported that the said judgment and order passed by the Division Bench of the High Court has been implemented by the State after the Special Leave Petition against the said judgment and order has been dismissed by this Court.
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4. Having heard learned counsel appearing on behalf of the respective parties and considering the various orders passed by the High Court, by which in similar facts and situation and not accepting the submission on behalf of the State that on the principle of no work no pay the teachers are not entitled to any monetary benefits for the intervening period between 62 years and 65 years of age, we are of the opinion that appellant shall be entitled to all consequential and monetary benefits including the arrears of salaries and allowances for the intervening period, as if he would have been retired at the age of 65 years. The appellant being similarly situated teacher cannot be singled out. Even in the case of Writ Appeal No. 378/2018 and other allied writ appeals, it was submitted by the State that on the principle of no work no pay such teachers are not entitled to any monetary benefits. However, the High Court vide detailed judgment and order has negated such a plea and defence and has observed that as the teachers were prevented from serving up to the age of 65 years though they were entitled to, as held by this Court in the case of Dr. R.S. Sohane (supra), they cannot be denied the monetary benefits for the intervening period. It is reported that the said judgment and order passed by the Division Bench of the High Court has been implemented by the State after the Special Leave Petition against the said judgment and order has been dismissed by this Court.
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Rithwik Energy Generation Pvt. Ltd Vs. Bangalore Electricity Supply Co. Ltd. & Others | the Court considers the adjudication of the said issue material and essential for its decision. 15. As seen from the Appellate Tribunals judgment dated 21.10.2011, not only did the appellant considered the subsequent event as directly and substantially in issue for deciding the appeal, which incidentally was not opposed by Respondent No.1 on this ground but on the ground that it would be bringing in a new issue at the stage of appeal, but the Appellate Tribunal having turned down the Respondent No.1s plea, and having examined subsequent events, it cannot but be said that the Appellate Tribunal itself considered the issue No.3 raised by it, based on subsequent events brought to its notice, as being directly and immediately in issue. On this ground also, therefore, we are of the view that, apart from the appellant being estopped in law from raising such a plea, the plea itself has no legs to stand down. 16. We now come to the other main plank of Mr. Mehtas submission. Mr. Mehta read to us Clause 9.3.2 of the PPA and contended that the letter dated 05.05.2011 substantially complied with the requirements of the said clause and should be treated to be a notice of default under the said clause. To appreciate this plea, Clause 9.3.2 of the PPA needs to be set out: "9.3.2 Termination for corporations Default: Upon the occurrence of an event of default as set out in sub-clause 9.2.2 above, Company may deliver a Default Notice to theult which requires the co-operative of both BESCOM and the Company to remedy, BESCOM shall render all reasonable cooperation to enable the Event of Default to be remedied." A reading of this clause would show that upon occurrence of an event of default, a default notice may be served to the Corporation in writing. The requirements of the aforesaid notice are two fold - (1) to specify in reasonable detail the event of default giving rise to the notice, and (2) calling upon Respondent No.1 to remedy the same within a period of 30 days from the delivery of the default notice unless the parties have agreed otherwise. It is only then that the Company may deliver a termination notice to the Corporation. 17. On a perusal of the letter dated 05.05.2011, what is clear is that the letter speaks only of events of default, but does not call upon Respondent No.1 to remedy the same within the period specified. This, according to Mr. Mehta, is in any event substantial compliance with the aforesaid clause. We cannot agree. Both parts of Clause 9.3.2 are important - one specifying in reasonable detail the event of default and the second, calling upon Respondent No.1 to remedy the same within a period of 30 days. It is also important to note that the parties may otherwise agree, in which case the Respondent No.1 may remedy the defaults mentioned in the notice either before or after the expiry of 30 days period laid down, showing that the parties considered that this part of Clause 9.3.2 is as important as the first part, for otherwise, a termination notice could, de hors the second part of Clause 9.3.2 have issued straight away without more. This being the case, we are unable to agree with Mr. Mehtas submission that there has been substantial compliance of Clause 9.3.2 of the PPA.18. Mr. Mehta cited three judgments before us to persuade us that the letter dated 05.05.2011 substantially complied with Clause 9.3.2 of the PPA.19. In Nani Gopal Biswas v. The Municipality of Howrah, [1958 S.C.R. 774, this Court was concerned with a notice issued under Section 299 of the Calcutta Municipal Act, 1923. Since Section 300 of the Municipal Act was attracted to the facts of the case and not Section 299, this Court held that even though the notice may be headed as being under Section 299 of the Act, it would make no difference as, in substance, the effective part of the notice leaves no doubt in the minds of the parties concerned that the requisition is to remove an encroachment caused by a compound wall which is a structure which falls within Section 300. This case is wholly distinguishable inasmuch as all that was required by Section 300 of the Calcutta Municipal Act was the fact that a compound wall was an encroachment. This was clearly stated in the notice, and the fact that it was stated to be under a wrong provision of law would, therefore, make no difference to the substance of the notice.20. Similarly, in Thakur Pratap Singh v. Shri Krishna Gupta and Others, [1955] 2 S.C.R. 1029, this Court dealt with the filling up of a nomination paper in order to stand for the office of President of a Municipal Committee. Here again, this Court held that the fact that the word "occupation" in the form was either struck out or left blank would make no difference since a mans occupation is not one of the qualifications for the office of President. It was, therefore, held that this part of the form was only directory, and is part of the description of the candidate, but does not go to the root of the matter, so long as there is enough material in the paper to enable him to be identified beyond doubt. This judgment again is wholly distinguishable on facts in that, as has been found by us above, the part of Clause 9.3.2 relating to calling upon Respondent No.1 to remedy defaults within a period of 30 days unless otherwise agreed is as important as the events of default that have been stated to have taken place. Substantial compliance, therefore, can be no answer to such a mandatory requirement.21. It is unnecessary for us to pronounce on any further aspect, including the aspect of late payment and late opening of Letter of Credit. We are of the view that the Appellate Tribunal in the impugned judgment cannot be faulted on any score. | 0[ds]12. Having heard the learned counsel appearing for the parties, we are of the view that there is no doubt whatsoever that the appellant itself invited the Appellate Tribunal to go into a subsequent event, which, according to it, was of extreme importance in deciding the appeal. This being the case, it is clear that, after contest, and after the Appellate Tribunal held in favour of the appellant that such subsequent event is indeed important and will be decided by the Tribunal, and then suffering a finding which was found, on merits, to be against it, we are of the view that the appellant is clearly estopped from attempting to argue now that the very important issue raised by way of subsequent events according to the appellant itself should be held, as a matter of law, to be only a collateral issue and therefore, not res judicata.As seen from the Appellate Tribunals judgment dated 21.10.2011, not only did the appellant considered the subsequent event as directly and substantially in issue for deciding the appeal, which incidentally was not opposed by Respondent No.1 on this ground but on the ground that it would be bringing in a new issue at the stage of appeal, but the Appellate Tribunal having turned down the Respondent No.1s plea, and having examined subsequent events, it cannot but be said that the Appellate Tribunal itself considered the issue No.3 raised by it, based on subsequent events brought to its notice, as being directly and immediately in issue. On this ground also, therefore, we are of the view that, apart from the appellant being estopped in law from raising such a plea, the plea itself has no legs to stand down.On a perusal of the letter dated 05.05.2011, what is clear is that the letter speaks only of events of default, but does not call upon Respondent No.1 to remedy the same within the period specified. This, according to Mr. Mehta, is in any event substantial compliance with the aforesaid clause. We cannot agree. Both parts of Clause 9.3.2 are importantone specifying in reasonable detail the event of default and the second, calling upon Respondent No.1 to remedy the same within a period of 30 days. It is also important to note that the parties may otherwise agree, in which case the Respondent No.1 may remedy the defaults mentioned in the notice either before or after the expiry of 30 days period laid down, showing that the parties considered that this part of Clause 9.3.2 is as important as the first part, for otherwise, a termination notice could, de hors the second part of Clause 9.3.2 have issued straight away without more. This being the case, we are unable to agree with Mr. Mehtas submission that there has been substantial compliance of Clause 9.3.2 of the PPA.18. Mr. Mehta cited three judgments before us to persuade us that the letter dated 05.05.2011 substantially complied with Clause 9.3.2 of the PPA.19. In Nani Gopal Biswas v. The Municipality of Howrah, [1958 S.C.R. 774, this Court was concerned with a notice issued under Section 299 of the Calcutta Municipal Act, 1923. Since Section 300 of the Municipal Act was attracted to the facts of the case and not Section 299, this Court held that even though the notice may be headed as being under Section 299 of the Act, it would make no difference as, in substance, the effective part of the notice leaves no doubt in the minds of the parties concerned that the requisition is to remove an encroachment caused by a compound wall which is a structure which falls within Section 300. This case is wholly distinguishable inasmuch as all that was required by Section 300 of the Calcutta Municipal Act was the fact that a compound wall was an encroachment. This was clearly stated in the notice, and the fact that it was stated to be under a wrong provision of law would, therefore, make no difference to the substance of the notice.20. Similarly, in Thakur Pratap Singh v. Shri Krishna Gupta and Others, [1955] 2 S.C.R. 1029, this Court dealt with the filling up of a nomination paper in order to stand for the office of President of a Municipal Committee. Here again, this Court held that the fact that the word "occupation" in the form was either struck out or left blank would make no difference since a mans occupation is not one of the qualifications for the office of President. It was, therefore, held that this part of the form was only directory, and is part of the description of the candidate, but does not go to the root of the matter, so long as there is enough material in the paper to enable him to be identified beyond doubt. This judgment again is wholly distinguishable on facts in that, as has been found by us above, the part of Clause 9.3.2 relating to calling upon Respondent No.1 to remedy defaults within a period of 30 days unless otherwise agreed is as important as the events of default that have been stated to have taken place. Substantial compliance, therefore, can be no answer to such a mandatory requirement.21. It is unnecessary for us to pronounce on any further aspect, including the aspect of late payment and late opening of Letter of Credit. We are of the view that the Appellate Tribunal in the impugned judgment cannot be faulted on any score. | 0 | 3,636 | 1,004 | ### Instruction:
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the Court considers the adjudication of the said issue material and essential for its decision. 15. As seen from the Appellate Tribunals judgment dated 21.10.2011, not only did the appellant considered the subsequent event as directly and substantially in issue for deciding the appeal, which incidentally was not opposed by Respondent No.1 on this ground but on the ground that it would be bringing in a new issue at the stage of appeal, but the Appellate Tribunal having turned down the Respondent No.1s plea, and having examined subsequent events, it cannot but be said that the Appellate Tribunal itself considered the issue No.3 raised by it, based on subsequent events brought to its notice, as being directly and immediately in issue. On this ground also, therefore, we are of the view that, apart from the appellant being estopped in law from raising such a plea, the plea itself has no legs to stand down. 16. We now come to the other main plank of Mr. Mehtas submission. Mr. Mehta read to us Clause 9.3.2 of the PPA and contended that the letter dated 05.05.2011 substantially complied with the requirements of the said clause and should be treated to be a notice of default under the said clause. To appreciate this plea, Clause 9.3.2 of the PPA needs to be set out: "9.3.2 Termination for corporations Default: Upon the occurrence of an event of default as set out in sub-clause 9.2.2 above, Company may deliver a Default Notice to theult which requires the co-operative of both BESCOM and the Company to remedy, BESCOM shall render all reasonable cooperation to enable the Event of Default to be remedied." A reading of this clause would show that upon occurrence of an event of default, a default notice may be served to the Corporation in writing. The requirements of the aforesaid notice are two fold - (1) to specify in reasonable detail the event of default giving rise to the notice, and (2) calling upon Respondent No.1 to remedy the same within a period of 30 days from the delivery of the default notice unless the parties have agreed otherwise. It is only then that the Company may deliver a termination notice to the Corporation. 17. On a perusal of the letter dated 05.05.2011, what is clear is that the letter speaks only of events of default, but does not call upon Respondent No.1 to remedy the same within the period specified. This, according to Mr. Mehta, is in any event substantial compliance with the aforesaid clause. We cannot agree. Both parts of Clause 9.3.2 are important - one specifying in reasonable detail the event of default and the second, calling upon Respondent No.1 to remedy the same within a period of 30 days. It is also important to note that the parties may otherwise agree, in which case the Respondent No.1 may remedy the defaults mentioned in the notice either before or after the expiry of 30 days period laid down, showing that the parties considered that this part of Clause 9.3.2 is as important as the first part, for otherwise, a termination notice could, de hors the second part of Clause 9.3.2 have issued straight away without more. This being the case, we are unable to agree with Mr. Mehtas submission that there has been substantial compliance of Clause 9.3.2 of the PPA.18. Mr. Mehta cited three judgments before us to persuade us that the letter dated 05.05.2011 substantially complied with Clause 9.3.2 of the PPA.19. In Nani Gopal Biswas v. The Municipality of Howrah, [1958 S.C.R. 774, this Court was concerned with a notice issued under Section 299 of the Calcutta Municipal Act, 1923. Since Section 300 of the Municipal Act was attracted to the facts of the case and not Section 299, this Court held that even though the notice may be headed as being under Section 299 of the Act, it would make no difference as, in substance, the effective part of the notice leaves no doubt in the minds of the parties concerned that the requisition is to remove an encroachment caused by a compound wall which is a structure which falls within Section 300. This case is wholly distinguishable inasmuch as all that was required by Section 300 of the Calcutta Municipal Act was the fact that a compound wall was an encroachment. This was clearly stated in the notice, and the fact that it was stated to be under a wrong provision of law would, therefore, make no difference to the substance of the notice.20. Similarly, in Thakur Pratap Singh v. Shri Krishna Gupta and Others, [1955] 2 S.C.R. 1029, this Court dealt with the filling up of a nomination paper in order to stand for the office of President of a Municipal Committee. Here again, this Court held that the fact that the word "occupation" in the form was either struck out or left blank would make no difference since a mans occupation is not one of the qualifications for the office of President. It was, therefore, held that this part of the form was only directory, and is part of the description of the candidate, but does not go to the root of the matter, so long as there is enough material in the paper to enable him to be identified beyond doubt. This judgment again is wholly distinguishable on facts in that, as has been found by us above, the part of Clause 9.3.2 relating to calling upon Respondent No.1 to remedy defaults within a period of 30 days unless otherwise agreed is as important as the events of default that have been stated to have taken place. Substantial compliance, therefore, can be no answer to such a mandatory requirement.21. It is unnecessary for us to pronounce on any further aspect, including the aspect of late payment and late opening of Letter of Credit. We are of the view that the Appellate Tribunal in the impugned judgment cannot be faulted on any score.
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12. Having heard the learned counsel appearing for the parties, we are of the view that there is no doubt whatsoever that the appellant itself invited the Appellate Tribunal to go into a subsequent event, which, according to it, was of extreme importance in deciding the appeal. This being the case, it is clear that, after contest, and after the Appellate Tribunal held in favour of the appellant that such subsequent event is indeed important and will be decided by the Tribunal, and then suffering a finding which was found, on merits, to be against it, we are of the view that the appellant is clearly estopped from attempting to argue now that the very important issue raised by way of subsequent events according to the appellant itself should be held, as a matter of law, to be only a collateral issue and therefore, not res judicata.As seen from the Appellate Tribunals judgment dated 21.10.2011, not only did the appellant considered the subsequent event as directly and substantially in issue for deciding the appeal, which incidentally was not opposed by Respondent No.1 on this ground but on the ground that it would be bringing in a new issue at the stage of appeal, but the Appellate Tribunal having turned down the Respondent No.1s plea, and having examined subsequent events, it cannot but be said that the Appellate Tribunal itself considered the issue No.3 raised by it, based on subsequent events brought to its notice, as being directly and immediately in issue. On this ground also, therefore, we are of the view that, apart from the appellant being estopped in law from raising such a plea, the plea itself has no legs to stand down.On a perusal of the letter dated 05.05.2011, what is clear is that the letter speaks only of events of default, but does not call upon Respondent No.1 to remedy the same within the period specified. This, according to Mr. Mehta, is in any event substantial compliance with the aforesaid clause. We cannot agree. Both parts of Clause 9.3.2 are importantone specifying in reasonable detail the event of default and the second, calling upon Respondent No.1 to remedy the same within a period of 30 days. It is also important to note that the parties may otherwise agree, in which case the Respondent No.1 may remedy the defaults mentioned in the notice either before or after the expiry of 30 days period laid down, showing that the parties considered that this part of Clause 9.3.2 is as important as the first part, for otherwise, a termination notice could, de hors the second part of Clause 9.3.2 have issued straight away without more. This being the case, we are unable to agree with Mr. Mehtas submission that there has been substantial compliance of Clause 9.3.2 of the PPA.18. Mr. Mehta cited three judgments before us to persuade us that the letter dated 05.05.2011 substantially complied with Clause 9.3.2 of the PPA.19. In Nani Gopal Biswas v. The Municipality of Howrah, [1958 S.C.R. 774, this Court was concerned with a notice issued under Section 299 of the Calcutta Municipal Act, 1923. Since Section 300 of the Municipal Act was attracted to the facts of the case and not Section 299, this Court held that even though the notice may be headed as being under Section 299 of the Act, it would make no difference as, in substance, the effective part of the notice leaves no doubt in the minds of the parties concerned that the requisition is to remove an encroachment caused by a compound wall which is a structure which falls within Section 300. This case is wholly distinguishable inasmuch as all that was required by Section 300 of the Calcutta Municipal Act was the fact that a compound wall was an encroachment. This was clearly stated in the notice, and the fact that it was stated to be under a wrong provision of law would, therefore, make no difference to the substance of the notice.20. Similarly, in Thakur Pratap Singh v. Shri Krishna Gupta and Others, [1955] 2 S.C.R. 1029, this Court dealt with the filling up of a nomination paper in order to stand for the office of President of a Municipal Committee. Here again, this Court held that the fact that the word "occupation" in the form was either struck out or left blank would make no difference since a mans occupation is not one of the qualifications for the office of President. It was, therefore, held that this part of the form was only directory, and is part of the description of the candidate, but does not go to the root of the matter, so long as there is enough material in the paper to enable him to be identified beyond doubt. This judgment again is wholly distinguishable on facts in that, as has been found by us above, the part of Clause 9.3.2 relating to calling upon Respondent No.1 to remedy defaults within a period of 30 days unless otherwise agreed is as important as the events of default that have been stated to have taken place. Substantial compliance, therefore, can be no answer to such a mandatory requirement.21. It is unnecessary for us to pronounce on any further aspect, including the aspect of late payment and late opening of Letter of Credit. We are of the view that the Appellate Tribunal in the impugned judgment cannot be faulted on any score.
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State Bank Of India Vs. R. K. Jain & Ors | the Tribunal to accept the evidence adduced by the management and hold in its favour even if its finding is against the management regarding the validity of the domestic inquiry. It is essentially a matter for the management to decide about the stand that it proposes to take before the Tribunal. It may be emphasised, that it is the right of the management to sustain its order by adducing also independent evidence before the Tribunal. It is a right given to the management and it is for the management to avail itself of the said opportunity. 38. We will now refer to the decisions of the High Courts, which have been referred by the learned solicitor. In M/s. Hindustan Steel Ltd v. Their Workers through Rourkela Mazdoor Sabha and others, [1969 - II L.L.J. 202]; 1970 Lab. & I.C. 102, a Division Bench of the Orissa High Court had to consider a claim made by the management that if a Labour Court comes to a conclusion that the domestic inquiry was not fair, it should have given notice to the management regarding its finding about the defect in the domestic inquiry and then give an opportunity to the management to adduce independent evidence before it to establish the charge against the workman. This contention was negatived by the High Court on the ground that there was no obligation, in law, on the part of the Labour Court to indicate its mind about the infirmities in the domestic inquiry at any stage before it gave its finding in the award. 39. A contrary view has been taken by the Madhya Pradesh High Court in The Madhya Pradesh State Road Transport Corporation v. Industrial Court, Madhya Pradesh, [1971 - I L.L.J. 447] : 1970 Lab. & I.C. 510. A Division Bench of the said High Court has held that it is a healthy practice, that after coming to the conclusion that the domestic inquiry was not proper, the Industrial Tribunal or the Labour Court should give an opportunity to the employer to produce evidence to satisfy the authority that the action taken by it is justified. 40. A similar view has also been taken by a learned Single Judge of the Delhi High Court in Premnath Motors Workshop Private Ltd. v. Industrial Tribunal, Delhi, [1971 - I L.L.J. 167]; (1971) I.F. & L.R. 370. In the said decision it has been held that it is essential that a Tribunal or a Labour Court gives at first a finding about the legality of the domestic inquiry before it decides to consider the merits of the charges. At that stage the Tribunal must give the parties an opportunity to adduce such evidence regarding the charges as the Tribunal might consider relevant. 41. It is clear from the three decisions of the High Courts, referred to above, that there is a difference of view between the Orissa High Court on the one hand and the Madhya Pradesh and Delhi High Courts on the other. The Madhya Pradesh and Delhi High Courts appear to proceed on the basis that the inquiry before the Tribunal has to be conducted in two parts, namely, first an investigation into the validity of the domestic inquiry, and if the decision is against the management on this point, then to conduct a further inquiry regarding the evidence that may be adduced by the parties about the validity of the action taken by the management. As already mentioned by us earlier, there is no justification for such a view being taken. By and large, we are in agreement with the views expressed by the Orissa High Court. But the Orissa High Court has observed that it may be open to the management to request the Tribunal to decide, in the first instance, as a preliminary issue regarding the validity of the domestic inquiry that may have been conducted by it. In our opinion, no hard and fast rule can be laid down under what circumstances an issue is to be decided as a preliminary issue. That is a matter for the Tribunal or the Labour Court concerned to consider, having due regard to the nature of the pleadings and the points that arise for consideration. 42. In the case before us the appellant has no right to make a grievance that he should have been given an opportunity to adduce evidence on facts before the Tribunal justifying the action taken by it against the workman. The written statement filed by the appellant before the Industrial Tribunal makes it quite clear that the appellant was prepared to sustain the validity of the order of discharge solely on the basis of the domestic inquiry conducted by B. D. Sharma. The evidence adduced before the Tribunal was also of the inquiry officer B. D. Sharma and of the officer who passed the order of termination. Both these witnesses referred only to the proceedings connected with the domestic inquiry and gave evidence to the effect that the workman was given all facilities to participate in the domestic inquiry. The managements stand was that it is prepared to justify the legality of the order of discharge solely on the basis of the domestic inquiry held by it as a result of which the order of discharge was passed. It never offered to produce any evidence before the Tribunal, apart from the inquiry proceedings. No doubt, there is a right in the management to adduce evidence before the Tribunal and justify the action taken by it. No such opportunity was asked for by the appellant nor even availed of. If such an opportunity was asked for, but refused by the Tribunal, the position would be entirely different. The appellant further has not even made a grievance in the special leave petition that it was not given an opportunity by the Tribunal to adduce independent evidence to justify the action taken by it. Therefore, it follows that the third contention of the learned Solicitor-General has also to be rejected. | 0[ds]35. From the above extract it is clear that it is open to the management to rely upon the domestic inquiry conducted by it and satisfy the Tribunal that there is no infirmity attached to the same. The management has also got a right to justify on facts as well that its order of dismissal or discharge was proper.The above principles have also been reiterated in the later decisions of this Court. Under those circumstances, we fail to see why the High Courts should raise a controversy about the stage when the management has to adduce evidence before the Tribunal to justify the action taken by it.It should be remembered that when an order of punishment by way of dismissal or termination of service is effected by the management, the issue that is referred is whether the management was justified in discharging and terminating the service of the workman concerned and whether the workman is entitled to any relief. In the present case, the actual issue that was referred for adjudication to the Industrial Tribunal had already been quoted in the earlier part of the judgment. There may be cases where an inquiry has been held preceding the order of termination or there may have been no inquiry at all. But the dispute that will be referred is not whether the domestic inquiry has been conducted properly or not by the management, but the larger question whether the order of termination, dismissal or the order imposing punishment on the workman concerned is justified. Under those circumstances it is the right of the workman to plead all infirmities in the domestic inquiry, if one has been held, and also to attack the order on all grounds available to him in law and on facts. Similarly the management has also a right to defend the action taken by it on the ground that a proper domestic inquiry has been held by it on the basis of which the order impugned has been passed. It is also open to the management to justify on facts that the order passed by it was proper. But the point to be noted is that the inquiry that is conducted by the Tribunal is a composite inquiry regarding the order which is under challenge. If the management defends its action solely on the basis that the domestic inquiry held by it is proper and valid and if the Tribunal hold against the management on that point, the management will fail. On the other hand, if the management relies not only on the validity, of the domestic inquiry, but also adduces evidence before the Tribunal justifying its action, it is open to the Tribunal to accept the evidence adduced by the management and hold in its favour even if its finding is against the management regarding the validity of the domestic inquiry. It is essentially a matter for the management to decide about the stand that it proposes to take before the Tribunal. It may be emphasised, that it is the right of the management to sustain its order by adducing also independent evidence before the Tribunal. It is a right given to the management and it is for the management to avail itself of the said opportunity.We will now refer to the decisions of the High Courts, which have been referred by the learned solicitor. In M/s. Hindustan Steel Ltd v. Their Workers through Rourkela Mazdoor Sabha and others, [1969 - II L.L.J. 202]; 1970 Lab. & I.C. 102, a Division Bench of the Orissa High Court had to consider a claim made by the management that if a Labour Court comes to a conclusion that the domestic inquiry was not fair, it should have given notice to the management regarding its finding about the defect in the domestic inquiry and then give an opportunity to the management to adduce independent evidence before it to establish the charge against the workman. This contention was negatived by the High Court on the ground that there was no obligation, in law, on the part of the Labour Court to indicate its mind about the infirmities in the domestic inquiry at any stage before it gave its finding in the award.39. A contrary view has been taken by the Madhya Pradesh High Court in The Madhya Pradesh State Road Transport Corporation v. Industrial Court, Madhya Pradesh, [1971 - I L.L.J. 447] : 1970 Lab. & I.C. 510. A Division Bench of the said High Court has held that it is a healthy practice, that after coming to the conclusion that the domestic inquiry was not proper, the Industrial Tribunal or the Labour Court should give an opportunity to the employer to produce evidence to satisfy the authority that the action taken by it is justified.A similar view has also been taken by a learned Single Judge of the Delhi High Court in Premnath Motors Workshop Private Ltd. v. Industrial Tribunal, Delhi, [1971 - I L.L.J. 167]; (1971) I.F. & L.R. 370. In the said decision it has been held that it is essential that a Tribunal or a Labour Court gives at first a finding about the legality of the domestic inquiry before it decides to consider the merits of the charges. At that stage the Tribunal must give the parties an opportunity to adduce such evidence regarding the charges as the Tribunal might consider relevant.It is clear from the three decisions of the High Courts, referred to above, that there is a difference of view between the Orissa High Court on the one hand and the Madhya Pradesh and Delhi High Courts on the other. The Madhya Pradesh and Delhi High Courts appear to proceed on the basis that the inquiry before the Tribunal has to be conducted in two parts, namely, first an investigation into the validity of the domestic inquiry, and if the decision is against the management on this point, then to conduct a further inquiry regarding the evidence that may be adduced by the parties about the validity of the action taken by the management. As already mentioned by us earlier, there is no justification for such a view being taken. By and large, we are in agreement with the views expressed by the Orissa High Court. But the Orissa High Court has observed that it may be open to the management to request the Tribunal to decide, in the first instance, as a preliminary issue regarding the validity of the domestic inquiry that may have been conducted by it. In our opinion, no hard and fast rule can be laid down under what circumstances an issue is to be decided as a preliminary issue. That is a matter for the Tribunal or the Labour Court concerned to consider, having due regard to the nature of the pleadings and the points that arise for consideration.In the case before us the appellant has no right to make a grievance that he should have been given an opportunity to adduce evidence on facts before the Tribunal justifying the action taken by it against the workman. The written statement filed by the appellant before the Industrial Tribunal makes it quite clear that the appellant was prepared to sustain the validity of the order of discharge solely on the basis of the domestic inquiry conducted by B. D. Sharma. The evidence adduced before the Tribunal was also of the inquiry officer B. D. Sharma and of the officer who passed the order of termination. Both these witnesses referred only to the proceedings connected with the domestic inquiry and gave evidence to the effect that the workman was given all facilities to participate in the domestic inquiry. The managements stand was that it is prepared to justify the legality of the order of discharge solely on the basis of the domestic inquiry held by it as a result of which the order of discharge was passed. It never offered to produce any evidence before the Tribunal, apart from the inquiry proceedings. No doubt, there is a right in the management to adduce evidence before the Tribunal and justify the action taken by it. No such opportunity was asked for by the appellant nor even availed of. If such an opportunity was asked for, but refused by the Tribunal, the position would be entirely different. The appellant further has not even made a grievance in the special leave petition that it was not given an opportunity by the Tribunal to adduce independent evidence to justify the action taken by it. Therefore, it follows that the third contention of the learned Solicitor-General has also to be rejected.As mentioned earlier the appellant has discharged the services of the first respondent under(c) of cl. 10 referred to above. It will also be seen that(a) of cl. 10 incorporates substantially the principles of natural justice in the conduct of an inquiry and also of giving a reasonable opportunity to the workman concerned to defend himself, which includes a right tothe witnesses on the side of the management, and also to adduce evidence in support of his defence.The legal position regarding the circumstances under which the Tribunal can interfere with the domestic inquiry have been laid down by this Court. Among the circumstances which will justify the interference by the Tribunal are : when the order of discharge is punitive, or mala fide or when it amounts to victimization or unfair labour practice, vide Tata Oil Mills Company Ltd. v. Their Workmen,L.L.J. 602]. The order terminating the services of the workman can also be set aside when there has been a violation of the principles of natural justice, in the conduct of the inquiry which led to the passing of the order of termination. The extent of the jurisdiction of a Labour Court or Industrial Tribunal to interfere with an order of termination passed on the basis of domestic inquiry held by the management have also been reiterated by this Court in Anand Bazar Patrika (P) Ltd. v. Its Workmen, [1963II L.L.J. 429]; (1964) 3 S.C.R. 601 at page 606 (of S.C.R.) as followsextent of the jurisdiction which a Labour Court or an Industrial Tribunal can exercise dealing with such disputes isIf the termination of an industrial employees services has been preceded by a proper domestic enquiry which has been held in accordance with the rules of natural justice and the conclusions reached at the said enquiry are not perverse, the Tribunal is not entitled to consider the propriety or the correctness of the said conclusions. If, on the other hand, in terminating the services of the employee, the management had acted maliciously or vindictively or has been actuated by a desire to punish the employee for his trade union activities, the Tribunal would be entitled to give adequate protection to the employee by ordering his reinstatement, or directing in his favour the payment of compensation; but if the enquiry has been proper and the conduct of the management in dismissing the employee is not mala fide, then the Tribunal cannot interfere with the conclusions of the enquiry officer, or with the orders passed by the management after accepting the said conclusions.That an officer holding the domestic inquiry can take, no valid or effective steps to compel the attendance of any witness and that, just as the management produces its witnesses before the officer concerned for giving evidence, it is the duty of the workman to take steps to produce his witnesses before the inquiry officer holding a domestic inquiry, are also laid down by his Court in Tata Oil Mills Co. Ltd. v. Its Workmen, [1963II L.L.J. 78]; (1964) 7 S.C.R. 555.Having due regard to the principles laid down in the above decisions, the contention of the learned solicitor that the inquiry officer B. D. Sharma, was justified in refusing to examine the three officers of the appellant branch as desired by the workman and that he was also justified in refusing to summon the two cashiers, namely, Pooran Singh and Sanjhi Ram, to give evidence, on the ground that it is the duty of the workman to have them produced for giving evidence, no doubt, may on the face of it appear to be very attractive. But when the facts are considered, it will be clear that no reasonable opportunity has been provided in the domestic inquiry to the workman to place his defence. As emphasised by this Court in Ananda Bazar Patrika (P.) Ltd. v. Its Workmen (supra), the termination of an employees service must be preceded by a proper domestic inquiry held in accordance with the rules of natural justice. Therefore, it is evident that if the inquiry is vitiated by violation of the principles of natural justice or if no reasonable opportunity was provided to a delinquent to place his defence, it cannot be characterized as a proper domestic inquiry held in accordance with the rules of natural justice. He will be indicating later that the domestic inquiry held in this case suffers from a very serious infirmity.Mr. Ramamurthi referred us to certain letters addressed by the staff association on behalf of R. K. Jain in support of his contention that the second inquiry was not held at the instance of the workman. In our opinion, Mr. Ramamurthi isin his contention and the view of the Industrial Tribunal in this regard is correct. We will now refer to the material on record which will support the above finding of the Industrial Tribunal.The correspondence that took place between the inquiry officer and the staff association clearly shows that the workman never wanted a second inquiry to be conducted against him. The correspondence also shows that the first inquiry, though it was conducted to the finish by B. P. Tiwari was abandoned by the management due to the unreasonable attitude of the officers of the Reserve Bank of India, who figured as witnesses, refusing to beby the workman. The management never informed the workman about their decision to conduct a second inquiry till B. D. Sharma himself conveyed that intention to the workman only as late as May 27, 1961. It is clearly established in the circumstances that the second inquiry was not conducted because the workman wanted it. On the other hand, it is clear that it was being conducted at the instance of the management. Therefore, the finding of the Industrial Tribunal that the second inquiry was not conducted because the workman wanted it, isthese circumstances, quite naturally the two witnesses did not appear before the inquiry officer and the workman also could not afford to bring them all the way to give evidence on his side. On the other hand, the management brought all their officers as well as the officers of the Reserve Bank for the purpose of giving evidence on their side and the management incurred all the expenses in that behalf. During the course of the correspondence the workman even made a request that the Reserve Bank officers had already given evidence in the previous inquiry and that the present inquiry may be confined only to theirand the inquiry continued from the stage. He also made a request that in case the two cashiers, Pooran Singh and Sanjhi Ram, are not summoned on his behalf, their evidence given in the inquiry held by B. P. Tiwari, which was already on record, may be treated as their evidence in the present proceedings. These requests were also rejected by the inquirynormally, it may be the duty of the workman to have his witnesses produced before the inquiry officer in the particular circumstances of this case the position is entirely different. The workman has admittedly incurred heavy expenses in the previous inquiry conducted by B. P. Tiwari. There is no controversy that he brought the two cashiers at considerable expense to give evidence on his side. That inquiry conducted by B. P. Tiwari was abandoned by the management not because of any fault of the workman but because of the unreasonable attitude adopted by the employees of the Reserve Bank who gave evidence. For the conduct of those witnesses, the workman, in our opinion, should not be punished by making him to incur the expenses over again specially when the second inquiry was being conducted by the management of its own volition in spite of protest made by the workman, and the management was prepared to bear the expenses of the second inquiry regarding its officers as well as the officers of the Reserve Bank of India, Ludhiana. But it was not prepared to accept, what, in our view, was a reasonable and modest request made by the first respondent to have the two cashiers summoned for giving evidence on his side. As to what evidence they would have given or as to whether the evidence given by them would have helped the respondent No. 1 are not matters which arise for consideration, because their evidence was not made available in the second inquiry. Under those circumstances, in our opinion, the Tribunal was justified in holding that there has been a violation of the principles of natural justice in the conduct of the domestic inquiry and that the workman was not afforded a reasonable opportunity to place his defence before the inquiry officer. It may be that the order of the inquiry officer declining to ask the management to produce the three officers may be justified, because the inquiry officer certainly has discretion to consider whether their evidence will be relevant or not. But the inquiry officer, who was part of the management, was not justified in not forwarding the request of the workman to arrange for the production of Pooran Singh and Sanjhi Ram. Therefore, it follows that the domestic inquiry suffers from a very serious infirmity and in consequence the order of discharge based upon the findings recorded in such an inquiry cannot be sustained. Such an order has been rightly set aside by the Industrialare not inclined to accept this contention of the learned solicitor. Apart from the fact that the management never sought to place any reliance on this part of(c), quoted above, before the Tribunal or even in the special leave petition before this Court, the contention is also devoid of substance. The finding of the inquiry officer B. D. Sharma is that, on the evidence adduced before him the workman is guilty of both the charges levelled against him and that the charges have been proved beyond all doubt. The show cause notice dated March 4, 1953 sent by the superintendent of the appellant branch at Ambala categorically says that in the inquiry conducted by B. D. Sharma, the workman has been found guilty of the charges and that on the basis of the said finding, it is proposed to punish the workman by discharging him from service without notice. The final order of discharge dated August 1, 1963 is also to the same effect. Therefore, the appellant never proceeded on the basis that the service of the appellant was being dispensed with on the ground that the management did not think it expedient to retain the workman in its service, notwithstanding the fact that the evidence has been found to be insufficient to sustain the charges levelled against him. Therefore, the second contention of the learned solicitor has to be rejected.True it is, that it has been held by this Court in Workmen of Motipur Sugar Factory (Private) Ltd. v.II L.L.J. 162]; (1965) 3 S.C.R. 588, at page 596 (S.C.R.)ed, by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the Tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic enquiries have been held. The entire matter would be open before the Tribunal which will have jurisdiction not only to go into the limited questions open to a Tribunal where domestic enquiry has been properly held (see Indian Iron & Steel Co. v. Their Workman, [1958I L.L.J. 260]; (1958) S.C.R. 667, but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified. We may in this connection refer to M/s. Sasa Musa Sugar Works (P.) Ltd. v. Shobrati Khan, [1959II L.L.J. 388]; (1959) Supp. 2. S.C.R. 836, Phulbari Tea Estate v. Its Workmen, [1959II L.L.J. 663]; (1960) 1 S.C.R. 32, and Punjab National Bank Ltd. v. Its Workmen, [1959II L.L.J. 666]; (1960) 1 S.C.R. 806. These three cases were further considered by this Court in Bharat Sugar Mills Limited v. Shri Jai Singh, [1961II L.L.J. 644]; (1962) 3 S.C.R. 684, and reference was also made to the decision of the Labour Appellate Tribunal in Shri Ram Swarath Sinha v. Belsund Sugar Co. Ltd. (1954) Lab. A.C. 697. It was pointed out that the important effect of omission to hold an enquiry was merely this : that the Tribunal would not have to consider only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have really been made out. It is true that there of these cases, except Phulbari Tea Estates case (supra) were on applications under S.33 ofthe Industrial Disputes Act,But in principle we see no difference whether the matter comes before the Tribunal for approval under S. 33 or on a reference under S.10 ofthe Industrial Disputes Act,In either case if the enquiry is defective or if no inquiry has been held as required by standing orders, the entire case would be open before the Tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was proper. Phulbari Tea Estates case (supra) was on a reference under S. 10 and the same principle was applied there also, the only difference being that in that case, there was an inquiry though it was defective. A defective enquiry in our opinion stands on the same footing as no enquiry and in either case the Tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the Tribunal that on facts the order of dismissal or discharge was proper.From the above extract it is clear that it is open to the management to rely upon the domestic inquiry conducted by it and satisfy the Tribunal that there is no infirmity attached to the same. The management has also got a right to justify on facts as well that its order of dismissal or discharge was proper.e above principles have also been reiterated in the later decisions of this Court. Under those circumstances, we fail to see why the High Courts should raise a controversy about the stage when the management has to adduce evidence before the Tribunal to justify the action taken by it.t should be remembered that when an order of punishment by way of dismissal or termination of service is effected by the management, the issue that is referred is whether the management was justified in discharging and terminating the service of the workman concerned and whether the workman is entitled to any relief. In the present case, the actual issue that was referred for adjudication to the Industrial Tribunal had already been quoted in the earlier part of the judgment. There may be cases where an inquiry has been held preceding the order of termination or there may have been no inquiry at all. But the dispute that will be referred is not whether the domestic inquiry has been conducted properly or not by the management, but the larger question whether the order of termination, dismissal or the order imposing punishment on the workman concerned is justified. Under those circumstances it is the right of the workman to plead all infirmities in the domestic inquiry, if one has been held, and also to attack the order on all grounds available to him in law and on facts. Similarly the management has also a right to defend the action taken by it on the ground that a proper domestic inquiry has been held by it on the basis of which the order impugned has been passed. It is also open to the management to justify on facts that the order passed by it was proper. But the point to be noted is that the inquiry that is conducted by the Tribunal is a composite inquiry regarding the order which is under challenge. If the management defends its action solely on the basis that the domestic inquiry held by it is proper and valid and if the Tribunal hold against the management on that point, the management will fail. On the other hand, if the management relies not only on the validity, of the domestic inquiry, but also adduces evidence before the Tribunal justifying its action, it is open to the Tribunal to accept the evidence adduced by the management and hold in its favour even if its finding is against the management regarding the validity of the domestic inquiry. It is essentially a matter for the management to decide about the stand that it proposes to take before the Tribunal. It may be emphasised, that it is the right of the management to sustain its order by adducing also independent evidence before the Tribunal. It is a right given to the management and it is for the management to avail itself of the said opportunity.A similar view has also been taken by a learned Single Judge of the Delhi High Court in Premnath Motors Workshop Private Ltd. v. Industrial Tribunal, Delhi, [1971I L.L.J. 167]; (1971) I.F. & L.R. 370. In the said decision it has been held that it is essential that a Tribunal or a Labour Court gives at first a finding about the legality of the domestic inquiry before it decides to consider the merits of the charges. At that stage the Tribunal must give the parties an opportunity to adduce such evidence regarding the charges as the Tribunal might consider relevant.It is clear from the three decisions of the High Courts, referred to above, that there is a difference of view between the Orissa High Court on the one hand and the Madhya Pradesh and Delhi High Courts on the other. The Madhya Pradesh and Delhi High Courts appear to proceed on the basis that the inquiry before the Tribunal has to be conducted in two parts, namely, first an investigation into the validity of the domestic inquiry, and if the decision is against the management on this point, then to conduct a further inquiry regarding the evidence that may be adduced by the parties about the validity of the action taken by the management. As already mentioned by us earlier, there is no justification for such a view being taken. By and large, we are in agreement with the views expressed by the Orissa High Court. But the Orissa High Court has observed that it may be open to the management to request the Tribunal to decide, in the first instance, as a preliminary issue regarding the validity of the domestic inquiry that may have been conducted by it. In our opinion, no hard and fast rule can be laid down under what circumstances an issue is to be decided as a preliminary issue. That is a matter for the Tribunal or the Labour Court concerned to consider, having due regard to the nature of the pleadings and the points that arise for consideration.In the case before us the appellant has no right to make a grievance that he should have been given an opportunity to adduce evidence on facts before the Tribunal justifying the action taken by it against the workman. The written statement filed by the appellant before the Industrial Tribunal makes it quite clear that the appellant was prepared to sustain the validity of the order of discharge solely on the basis of the domestic inquiry conducted by B. D. Sharma. The evidence adduced before the Tribunal was also of the inquiry officer B. D. Sharma and of the officer who passed the order of termination. Both these witnesses referred only to the proceedings connected with the domestic inquiry and gave evidence to the effect that the workman was given all facilities to participate in the domestic inquiry. The managements stand was that it is prepared to justify the legality of the order of discharge solely on the basis of the domestic inquiry held by it as a result of which the order of discharge was passed. It never offered to produce any evidence before the Tribunal, apart from the inquiry proceedings. No doubt, there is a right in the management to adduce evidence before the Tribunal and justify the action taken by it. No such opportunity was asked for by the appellant nor even availed of. If such an opportunity was asked for, but refused by the Tribunal, the position would be entirely different. The appellant further has not even made a grievance in the special leave petition that it was not given an opportunity by the Tribunal to adduce independent evidence to justify the action taken by it. Therefore, it follows that the third contention of the learnedhas also to be rejected. | 0 | 11,262 | 5,311 | ### Instruction:
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the Tribunal to accept the evidence adduced by the management and hold in its favour even if its finding is against the management regarding the validity of the domestic inquiry. It is essentially a matter for the management to decide about the stand that it proposes to take before the Tribunal. It may be emphasised, that it is the right of the management to sustain its order by adducing also independent evidence before the Tribunal. It is a right given to the management and it is for the management to avail itself of the said opportunity. 38. We will now refer to the decisions of the High Courts, which have been referred by the learned solicitor. In M/s. Hindustan Steel Ltd v. Their Workers through Rourkela Mazdoor Sabha and others, [1969 - II L.L.J. 202]; 1970 Lab. & I.C. 102, a Division Bench of the Orissa High Court had to consider a claim made by the management that if a Labour Court comes to a conclusion that the domestic inquiry was not fair, it should have given notice to the management regarding its finding about the defect in the domestic inquiry and then give an opportunity to the management to adduce independent evidence before it to establish the charge against the workman. This contention was negatived by the High Court on the ground that there was no obligation, in law, on the part of the Labour Court to indicate its mind about the infirmities in the domestic inquiry at any stage before it gave its finding in the award. 39. A contrary view has been taken by the Madhya Pradesh High Court in The Madhya Pradesh State Road Transport Corporation v. Industrial Court, Madhya Pradesh, [1971 - I L.L.J. 447] : 1970 Lab. & I.C. 510. A Division Bench of the said High Court has held that it is a healthy practice, that after coming to the conclusion that the domestic inquiry was not proper, the Industrial Tribunal or the Labour Court should give an opportunity to the employer to produce evidence to satisfy the authority that the action taken by it is justified. 40. A similar view has also been taken by a learned Single Judge of the Delhi High Court in Premnath Motors Workshop Private Ltd. v. Industrial Tribunal, Delhi, [1971 - I L.L.J. 167]; (1971) I.F. & L.R. 370. In the said decision it has been held that it is essential that a Tribunal or a Labour Court gives at first a finding about the legality of the domestic inquiry before it decides to consider the merits of the charges. At that stage the Tribunal must give the parties an opportunity to adduce such evidence regarding the charges as the Tribunal might consider relevant. 41. It is clear from the three decisions of the High Courts, referred to above, that there is a difference of view between the Orissa High Court on the one hand and the Madhya Pradesh and Delhi High Courts on the other. The Madhya Pradesh and Delhi High Courts appear to proceed on the basis that the inquiry before the Tribunal has to be conducted in two parts, namely, first an investigation into the validity of the domestic inquiry, and if the decision is against the management on this point, then to conduct a further inquiry regarding the evidence that may be adduced by the parties about the validity of the action taken by the management. As already mentioned by us earlier, there is no justification for such a view being taken. By and large, we are in agreement with the views expressed by the Orissa High Court. But the Orissa High Court has observed that it may be open to the management to request the Tribunal to decide, in the first instance, as a preliminary issue regarding the validity of the domestic inquiry that may have been conducted by it. In our opinion, no hard and fast rule can be laid down under what circumstances an issue is to be decided as a preliminary issue. That is a matter for the Tribunal or the Labour Court concerned to consider, having due regard to the nature of the pleadings and the points that arise for consideration. 42. In the case before us the appellant has no right to make a grievance that he should have been given an opportunity to adduce evidence on facts before the Tribunal justifying the action taken by it against the workman. The written statement filed by the appellant before the Industrial Tribunal makes it quite clear that the appellant was prepared to sustain the validity of the order of discharge solely on the basis of the domestic inquiry conducted by B. D. Sharma. The evidence adduced before the Tribunal was also of the inquiry officer B. D. Sharma and of the officer who passed the order of termination. Both these witnesses referred only to the proceedings connected with the domestic inquiry and gave evidence to the effect that the workman was given all facilities to participate in the domestic inquiry. The managements stand was that it is prepared to justify the legality of the order of discharge solely on the basis of the domestic inquiry held by it as a result of which the order of discharge was passed. It never offered to produce any evidence before the Tribunal, apart from the inquiry proceedings. No doubt, there is a right in the management to adduce evidence before the Tribunal and justify the action taken by it. No such opportunity was asked for by the appellant nor even availed of. If such an opportunity was asked for, but refused by the Tribunal, the position would be entirely different. The appellant further has not even made a grievance in the special leave petition that it was not given an opportunity by the Tribunal to adduce independent evidence to justify the action taken by it. Therefore, it follows that the third contention of the learned Solicitor-General has also to be rejected.
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already been quoted in the earlier part of the judgment. There may be cases where an inquiry has been held preceding the order of termination or there may have been no inquiry at all. But the dispute that will be referred is not whether the domestic inquiry has been conducted properly or not by the management, but the larger question whether the order of termination, dismissal or the order imposing punishment on the workman concerned is justified. Under those circumstances it is the right of the workman to plead all infirmities in the domestic inquiry, if one has been held, and also to attack the order on all grounds available to him in law and on facts. Similarly the management has also a right to defend the action taken by it on the ground that a proper domestic inquiry has been held by it on the basis of which the order impugned has been passed. It is also open to the management to justify on facts that the order passed by it was proper. But the point to be noted is that the inquiry that is conducted by the Tribunal is a composite inquiry regarding the order which is under challenge. If the management defends its action solely on the basis that the domestic inquiry held by it is proper and valid and if the Tribunal hold against the management on that point, the management will fail. On the other hand, if the management relies not only on the validity, of the domestic inquiry, but also adduces evidence before the Tribunal justifying its action, it is open to the Tribunal to accept the evidence adduced by the management and hold in its favour even if its finding is against the management regarding the validity of the domestic inquiry. It is essentially a matter for the management to decide about the stand that it proposes to take before the Tribunal. It may be emphasised, that it is the right of the management to sustain its order by adducing also independent evidence before the Tribunal. It is a right given to the management and it is for the management to avail itself of the said opportunity.A similar view has also been taken by a learned Single Judge of the Delhi High Court in Premnath Motors Workshop Private Ltd. v. Industrial Tribunal, Delhi, [1971I L.L.J. 167]; (1971) I.F. & L.R. 370. In the said decision it has been held that it is essential that a Tribunal or a Labour Court gives at first a finding about the legality of the domestic inquiry before it decides to consider the merits of the charges. At that stage the Tribunal must give the parties an opportunity to adduce such evidence regarding the charges as the Tribunal might consider relevant.It is clear from the three decisions of the High Courts, referred to above, that there is a difference of view between the Orissa High Court on the one hand and the Madhya Pradesh and Delhi High Courts on the other. The Madhya Pradesh and Delhi High Courts appear to proceed on the basis that the inquiry before the Tribunal has to be conducted in two parts, namely, first an investigation into the validity of the domestic inquiry, and if the decision is against the management on this point, then to conduct a further inquiry regarding the evidence that may be adduced by the parties about the validity of the action taken by the management. As already mentioned by us earlier, there is no justification for such a view being taken. By and large, we are in agreement with the views expressed by the Orissa High Court. But the Orissa High Court has observed that it may be open to the management to request the Tribunal to decide, in the first instance, as a preliminary issue regarding the validity of the domestic inquiry that may have been conducted by it. In our opinion, no hard and fast rule can be laid down under what circumstances an issue is to be decided as a preliminary issue. That is a matter for the Tribunal or the Labour Court concerned to consider, having due regard to the nature of the pleadings and the points that arise for consideration.In the case before us the appellant has no right to make a grievance that he should have been given an opportunity to adduce evidence on facts before the Tribunal justifying the action taken by it against the workman. The written statement filed by the appellant before the Industrial Tribunal makes it quite clear that the appellant was prepared to sustain the validity of the order of discharge solely on the basis of the domestic inquiry conducted by B. D. Sharma. The evidence adduced before the Tribunal was also of the inquiry officer B. D. Sharma and of the officer who passed the order of termination. Both these witnesses referred only to the proceedings connected with the domestic inquiry and gave evidence to the effect that the workman was given all facilities to participate in the domestic inquiry. The managements stand was that it is prepared to justify the legality of the order of discharge solely on the basis of the domestic inquiry held by it as a result of which the order of discharge was passed. It never offered to produce any evidence before the Tribunal, apart from the inquiry proceedings. No doubt, there is a right in the management to adduce evidence before the Tribunal and justify the action taken by it. No such opportunity was asked for by the appellant nor even availed of. If such an opportunity was asked for, but refused by the Tribunal, the position would be entirely different. The appellant further has not even made a grievance in the special leave petition that it was not given an opportunity by the Tribunal to adduce independent evidence to justify the action taken by it. Therefore, it follows that the third contention of the learnedhas also to be rejected.
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SITA RAM (DEAD) THROUGH LRS Vs. BHARAT SINGH (DEAD) THROUGH LRS | was sought as contemplated under the mandate of law but under the pre-amended scheme of the Act, 1950, the effect of exchange in contravention to the provisions of the Act and its consequence as embedded under Section 166 and 167 of the Act, 1950 makes the action to be voidable and not void and it entails consequences of void transfers, in the first instance, it only confines to sirdar or asami and not applicable upon those who are claiming rights of Bhumidar. At the same time, any transfer which has been made in contravention of the provisions of this Act including permission from the Assistant Collector as required under Section 161, the ejectment may be possible only on filing of a suit by Gaon Sabha or the land holder, as the case may be, and after the decree of ejectment being obtained under sub-section (1) of Section 167 of the Act, ejectment under sub- section (2) of Section 167 be permissible and for filing of the suit, the limitation has been provided under Appendix III annexed to Rule 338 of the Rules, 1952 of which reference has been made in terms thereof suit for ejectment could be filed within a period of six years from the date of the illegal transfer.24. The deed of exchange in the instant case was executed between the parties on 2 nd March, 1974 and the period of limitation for filing of the suit had expired in March 1980 much before the U.P. Act No. 20 of 1982 amended w.e.f. 3 rd June, 1981 came into force. Indisputedly, no suit was filed either by Gaon Sabha or any land holder for ejectment as envisaged under Section 167(1) of the Act, 1950. That apart, even assuming for the sake of argument, the deed of exchange executed on 2 nd March, 1974 even if considered to be void, taking note of the post amended provisions of the Act, 1950, it will still confine to the deed of exchange dated 2 nd March, 1974 which was obtained without taking permission from the Assistant Collector as envisaged under Section 161 of the Act and at the best the rights to the parties on execution of exchange deed could not be given effect to and it remain inter se between parties to the exchange(late Kesho Ram and late N.D. Chaudhary) at the same time, so far as the subject plot which was once transferred by the original tenure holders, namely, Smt. Chando and Sita Ram who are throughout contesting the matter (plot no.2902 area 0.34 decimals) to late N.D. Chaudhary by a registered sale deed dated 24 th January, 1973 which has been held to be genuine and valid, will not be under any legal impediment or having any effect on the rights of the parties, and the said transaction was not subject to compliance of Section 161 of the Act, 1950 and at least no rights of any kind over plot no. 2902 area 0.34 decimals could be claimed by the original tenure holders (appellants herein) and their grievance that late N.D. Chaudhary had not claimed his Bhumidari rights under the Act, 1953, suffice it to say, that no such provision to the contrary has been brought to our notice that if the holder has not taken steps for claiming Bhumidari rights under the Act, 1953 that will take away or divest from the legal rights conferred to the party in whose favour registered sale deed has been executed under the mandate of law.25. We are of the view that at least late Smt. Chando and Sita Ram, whose legal representatives are contesting the case throughout are not holding any locus standi to claim benefit of the defect in the deed of exchange dated 2 nd March, 1974 executed between different parties who are holders to their respective plots in their own rights and the procedure mandated under the law if not being followed of taking permission from the Assistant Collector as required under Section 161 of the Act, 1950, its consequences would not revive/restore the rights to the legal heirs of late Smt. Chando and Sita Ram(original tenure holders) over the subject property in question. That apart, the present appellants have never raised any plea for cancellation of the registered sale deed executed in favour of late N.D. Chaudhary dated 24 th January, 1973 which was otherwise not the subject matter to be examined under the provisions of the Act, 1950.26. The submission of learned counsel for the appellants that interference in the concurrent finding and the exchange deed being void as the permission from Assistant Collector has not been obtained and in consequence they are entitled for restoration/possession of plot no.2902 (area 0.34 decimals) which was originally sold by registered sale deed dated 24 th January, 1973 to late N.D. Chaudhary is without substance for the reason that these are two separate transactions which has taken place of the subject plot in question. As regards the rights and interests which were transferred by the present appellants vide registered sale deed dated 24 th January, 1973 in favour of late N.D. Chaudhary was never the subject matter of scrutiny and there was no violation/contravention of the provisions of Act, 1950 or of any other law has been pointed out to us.27. At the same time, so far as non-compliance of the mandatory requirement as envisaged under Section 161 of the Act, 1950 while executing the exchange deed dated 2 nd March, 1974 is concerned, parties have to bear its consequences of the void transaction as provided under Section 166 read with Section 167 of the Act, 1950 but that will not give any preference to the appellants for restoration of their rights and to nullify the registered sale deed dated 24 th January, 1973 executed after taking due consideration in favour of late N.D. Chaudhary.28. In our considered view, the conclusions of the High Court in its judgment impugned are unassailable and does not call for our interference. | 0[ds]16. It emerges from the pre amendment (U.P. Act No. 20 of 1982 w.e.f. 3 rd June, 1981) scheme of the Act, 1950 that any transfer made in contravention of this Chapter referred to under Section 166 which includes Section 161 as well were not be automatically void but voidable and therefore, as a consequence of alleged void transfers under Section 167, a suit was required to be filed by the Gaon Sabha or the land holder, as the case may be, within limitation of six years from the date of illegal transfer as indicated in Appendix III annexed to Rule 338 of Rules, 1952 but after the U.P. Act No. 20 of 1982 amended w.e.f. 3 rd June, 1981, the law has changed and every transfer made in contravention of this Act became void in view of Section 166 and in consequence of void transfer, the subject land is deemed to have been vested in the State Government by operation of law free from all encumbrances, and sub-section (2) of Section 167, authorises Collector/Competent Authority to take over possession with the use of force as may be necessary.17. In the instant case, the exchange deed was executed on 2 nd March, 1974 indisputedly without permission from the Assistant Collector provided under Section 161 and its consequence was embedded under Section 167 of the Act, 1950 authorising the Gaon Sabha or the land holder to file a suit for ejectment within a period of six years from the date of alleged illegal transfer which in the instant case had expired in March 1980 much prior to the U.P. Act No. 20 of 1982 was amended w.e.f. 3 rd June, 1981.18. After the scheme of the Act has been referred to in extenso, it is clear that at least the amendment which has been made by the U.P. Land Laws (Amendment) Act, 1982 with effect from 3 rd June, 1981 has no application on the case in hand.It is true that at one stage, late Smt. Chando and Sita Ram jointly raised objection in the consolidation proceedings initiated under Section 9A(1) of the Act, 1953 in reference to the registered sale deed dated 24 th January, 1973 but as we have already observed that the registered sale deed dated 24 th January, 1973 was genuine and duly executed by the parties and it is nowhere related in reference to the exchange proceedings which were initiated at a later point of time and this fact became clear that so far as the grievance of Smt. Chando and Sita Ram is concerned, after the sale deed was registered and executed on 24 th January, 1973 in favour of late N.D. Chaudhary, the ownership rights with possession stands transferred. It is true that late N.D. Chaudhary had not initiated proceedings for claiming his Bhumidari rights under the Act, 1953 but that, in any manner will not, nullify his right of ownership vested on execution of a registered sale deed dated 24 th January, 1973 and there is no prohibition or restriction to the contrary has been brought to our notice, if any, under the Act 1950.23. At a later stage, late N.D. Chaudhary(father of respondent nos. 10 and 11) and late Kesho Ram(father/grandfather of respondent nos. 1 to 8) who was the tenure holders of plot no. 2683 and 2888 got their plot exchanged by registered exchange deed dated 2 nd March, 1974 which indisputedly was in contravention of Section 161 of the pre-amended Act, 1950 where it was postulated that no exchange shall be made except with the permission of the Assistant Collector. Indisputedly, no permission was sought as contemplated under the mandate of law but under the pre-amended scheme of the Act, 1950, the effect of exchange in contravention to the provisions of the Act and its consequence as embedded under Section 166 and 167 of the Act, 1950 makes the action to be voidable and not void and it entails consequences of void transfers, in the first instance, it only confines to sirdar or asami and not applicable upon those who are claiming rights of Bhumidar. At the same time, any transfer which has been made in contravention of the provisions of this Act including permission from the Assistant Collector as required under Section 161, the ejectment may be possible only on filing of a suit by Gaon Sabha or the land holder, as the case may be, and after the decree of ejectment being obtained under sub-section (1) of Section 167 of the Act, ejectment under sub- section (2) of Section 167 be permissible and for filing of the suit, the limitation has been provided under Appendix III annexed to Rule 338 of the Rules, 1952 of which reference has been made in terms thereof suit for ejectment could be filed within a period of six years from the date of the illegal transfer.24. The deed of exchange in the instant case was executed between the parties on 2 nd March, 1974 and the period of limitation for filing of the suit had expired in March 1980 much before the U.P. Act No. 20 of 1982 amended w.e.f. 3 rd June, 1981 came into force. Indisputedly, no suit was filed either by Gaon Sabha or any land holder for ejectment as envisaged under Section 167(1) of the Act, 1950. That apart, even assuming for the sake of argument, the deed of exchange executed on 2 nd March, 1974 even if considered to be void, taking note of the post amended provisions of the Act, 1950, it will still confine to the deed of exchange dated 2 nd March, 1974 which was obtained without taking permission from the Assistant Collector as envisaged under Section 161 of the Act and at the best the rights to the parties on execution of exchange deed could not be given effect to and it remain inter se between parties to the exchange(late Kesho Ram and late N.D. Chaudhary) at the same time, so far as the subject plot which was once transferred by the original tenure holders, namely, Smt. Chando and Sita Ram who are throughout contesting the matter (plot no.2902 area 0.34 decimals) to late N.D. Chaudhary by a registered sale deed dated 24 th January, 1973 which has been held to be genuine and valid, will not be under any legal impediment or having any effect on the rights of the parties, and the said transaction was not subject to compliance of Section 161 of the Act, 1950 and at least no rights of any kind over plot no. 2902 area 0.34 decimals could be claimed by the original tenure holders (appellants herein) and their grievance that late N.D. Chaudhary had not claimed his Bhumidari rights under the Act, 1953, suffice it to say, that no such provision to the contrary has been brought to our notice that if the holder has not taken steps for claiming Bhumidari rights under the Act, 1953 that will take away or divest from the legal rights conferred to the party in whose favour registered sale deed has been executed under the mandate of law.25. We are of the view that at least late Smt. Chando and Sita Ram, whose legal representatives are contesting the case throughout are not holding any locus standi to claim benefit of the defect in the deed of exchange dated 2 nd March, 1974 executed between different parties who are holders to their respective plots in their own rights and the procedure mandated under the law if not being followed of taking permission from the Assistant Collector as required under Section 161 of the Act, 1950, its consequences would not revive/restore the rights to the legal heirs of late Smt. Chando and Sita Ram(original tenure holders) over the subject property in question. That apart, the present appellants have never raised any plea for cancellation of the registered sale deed executed in favour of late N.D. Chaudhary dated 24 th January, 1973 which was otherwise not the subject matter to be examined under the provisions of the Act, 1950.26. The submission of learned counsel for the appellants that interference in the concurrent finding and the exchange deed being void as the permission from Assistant Collector has not been obtained and in consequence they are entitled for restoration/possession of plot no.2902 (area 0.34 decimals) which was originally sold by registered sale deed dated 24 th January, 1973 to late N.D. Chaudhary is without substance for the reason that these are two separate transactions which has taken place of the subject plot in question. As regards the rights and interests which were transferred by the present appellants vide registered sale deed dated 24 th January, 1973 in favour of late N.D. Chaudhary was never the subject matter of scrutiny and there was no violation/contravention of the provisions of Act, 1950 or of any other law has been pointed out to us.27. At the same time, so far as non-compliance of the mandatory requirement as envisaged under Section 161 of the Act, 1950 while executing the exchange deed dated 2 nd March, 1974 is concerned, parties have to bear its consequences of the void transaction as provided under Section 166 read with Section 167 of the Act, 1950 but that will not give any preference to the appellants for restoration of their rights and to nullify the registered sale deed dated 24 th January, 1973 executed after taking due consideration in favour of late N.D. Chaudhary.28. In our considered view, the conclusions of the High Court in its judgment impugned are unassailable and does not call for our interference.To make it further clear that under the pre-amended scheme of the Act, 1950, the consequence for non-compliance of Section 161 of the Act, 1950 seeking permission from the Assistant Collector, was indeed the requirement of law and the effect of contravention and its consequence are embedded under Section 166 and 167 of the Act, 1950 but its consequential effect, in no manner, would take away or divest the rights and interest of the parties inter se conferred in reference to the sale deed which was originally executed in favour of late N.D. Chaudhary by late Smt. Chando and Sita Ram in reference to plot no. 2902 ad-measuring 0.34 decimals by the registered sale deed dated 24 th January, 1973. | 0 | 4,567 | 1,896 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
was sought as contemplated under the mandate of law but under the pre-amended scheme of the Act, 1950, the effect of exchange in contravention to the provisions of the Act and its consequence as embedded under Section 166 and 167 of the Act, 1950 makes the action to be voidable and not void and it entails consequences of void transfers, in the first instance, it only confines to sirdar or asami and not applicable upon those who are claiming rights of Bhumidar. At the same time, any transfer which has been made in contravention of the provisions of this Act including permission from the Assistant Collector as required under Section 161, the ejectment may be possible only on filing of a suit by Gaon Sabha or the land holder, as the case may be, and after the decree of ejectment being obtained under sub-section (1) of Section 167 of the Act, ejectment under sub- section (2) of Section 167 be permissible and for filing of the suit, the limitation has been provided under Appendix III annexed to Rule 338 of the Rules, 1952 of which reference has been made in terms thereof suit for ejectment could be filed within a period of six years from the date of the illegal transfer.24. The deed of exchange in the instant case was executed between the parties on 2 nd March, 1974 and the period of limitation for filing of the suit had expired in March 1980 much before the U.P. Act No. 20 of 1982 amended w.e.f. 3 rd June, 1981 came into force. Indisputedly, no suit was filed either by Gaon Sabha or any land holder for ejectment as envisaged under Section 167(1) of the Act, 1950. That apart, even assuming for the sake of argument, the deed of exchange executed on 2 nd March, 1974 even if considered to be void, taking note of the post amended provisions of the Act, 1950, it will still confine to the deed of exchange dated 2 nd March, 1974 which was obtained without taking permission from the Assistant Collector as envisaged under Section 161 of the Act and at the best the rights to the parties on execution of exchange deed could not be given effect to and it remain inter se between parties to the exchange(late Kesho Ram and late N.D. Chaudhary) at the same time, so far as the subject plot which was once transferred by the original tenure holders, namely, Smt. Chando and Sita Ram who are throughout contesting the matter (plot no.2902 area 0.34 decimals) to late N.D. Chaudhary by a registered sale deed dated 24 th January, 1973 which has been held to be genuine and valid, will not be under any legal impediment or having any effect on the rights of the parties, and the said transaction was not subject to compliance of Section 161 of the Act, 1950 and at least no rights of any kind over plot no. 2902 area 0.34 decimals could be claimed by the original tenure holders (appellants herein) and their grievance that late N.D. Chaudhary had not claimed his Bhumidari rights under the Act, 1953, suffice it to say, that no such provision to the contrary has been brought to our notice that if the holder has not taken steps for claiming Bhumidari rights under the Act, 1953 that will take away or divest from the legal rights conferred to the party in whose favour registered sale deed has been executed under the mandate of law.25. We are of the view that at least late Smt. Chando and Sita Ram, whose legal representatives are contesting the case throughout are not holding any locus standi to claim benefit of the defect in the deed of exchange dated 2 nd March, 1974 executed between different parties who are holders to their respective plots in their own rights and the procedure mandated under the law if not being followed of taking permission from the Assistant Collector as required under Section 161 of the Act, 1950, its consequences would not revive/restore the rights to the legal heirs of late Smt. Chando and Sita Ram(original tenure holders) over the subject property in question. That apart, the present appellants have never raised any plea for cancellation of the registered sale deed executed in favour of late N.D. Chaudhary dated 24 th January, 1973 which was otherwise not the subject matter to be examined under the provisions of the Act, 1950.26. The submission of learned counsel for the appellants that interference in the concurrent finding and the exchange deed being void as the permission from Assistant Collector has not been obtained and in consequence they are entitled for restoration/possession of plot no.2902 (area 0.34 decimals) which was originally sold by registered sale deed dated 24 th January, 1973 to late N.D. Chaudhary is without substance for the reason that these are two separate transactions which has taken place of the subject plot in question. As regards the rights and interests which were transferred by the present appellants vide registered sale deed dated 24 th January, 1973 in favour of late N.D. Chaudhary was never the subject matter of scrutiny and there was no violation/contravention of the provisions of Act, 1950 or of any other law has been pointed out to us.27. At the same time, so far as non-compliance of the mandatory requirement as envisaged under Section 161 of the Act, 1950 while executing the exchange deed dated 2 nd March, 1974 is concerned, parties have to bear its consequences of the void transaction as provided under Section 166 read with Section 167 of the Act, 1950 but that will not give any preference to the appellants for restoration of their rights and to nullify the registered sale deed dated 24 th January, 1973 executed after taking due consideration in favour of late N.D. Chaudhary.28. In our considered view, the conclusions of the High Court in its judgment impugned are unassailable and does not call for our interference.
### Response:
0
### Explanation:
of a suit by Gaon Sabha or the land holder, as the case may be, and after the decree of ejectment being obtained under sub-section (1) of Section 167 of the Act, ejectment under sub- section (2) of Section 167 be permissible and for filing of the suit, the limitation has been provided under Appendix III annexed to Rule 338 of the Rules, 1952 of which reference has been made in terms thereof suit for ejectment could be filed within a period of six years from the date of the illegal transfer.24. The deed of exchange in the instant case was executed between the parties on 2 nd March, 1974 and the period of limitation for filing of the suit had expired in March 1980 much before the U.P. Act No. 20 of 1982 amended w.e.f. 3 rd June, 1981 came into force. Indisputedly, no suit was filed either by Gaon Sabha or any land holder for ejectment as envisaged under Section 167(1) of the Act, 1950. That apart, even assuming for the sake of argument, the deed of exchange executed on 2 nd March, 1974 even if considered to be void, taking note of the post amended provisions of the Act, 1950, it will still confine to the deed of exchange dated 2 nd March, 1974 which was obtained without taking permission from the Assistant Collector as envisaged under Section 161 of the Act and at the best the rights to the parties on execution of exchange deed could not be given effect to and it remain inter se between parties to the exchange(late Kesho Ram and late N.D. Chaudhary) at the same time, so far as the subject plot which was once transferred by the original tenure holders, namely, Smt. Chando and Sita Ram who are throughout contesting the matter (plot no.2902 area 0.34 decimals) to late N.D. Chaudhary by a registered sale deed dated 24 th January, 1973 which has been held to be genuine and valid, will not be under any legal impediment or having any effect on the rights of the parties, and the said transaction was not subject to compliance of Section 161 of the Act, 1950 and at least no rights of any kind over plot no. 2902 area 0.34 decimals could be claimed by the original tenure holders (appellants herein) and their grievance that late N.D. Chaudhary had not claimed his Bhumidari rights under the Act, 1953, suffice it to say, that no such provision to the contrary has been brought to our notice that if the holder has not taken steps for claiming Bhumidari rights under the Act, 1953 that will take away or divest from the legal rights conferred to the party in whose favour registered sale deed has been executed under the mandate of law.25. We are of the view that at least late Smt. Chando and Sita Ram, whose legal representatives are contesting the case throughout are not holding any locus standi to claim benefit of the defect in the deed of exchange dated 2 nd March, 1974 executed between different parties who are holders to their respective plots in their own rights and the procedure mandated under the law if not being followed of taking permission from the Assistant Collector as required under Section 161 of the Act, 1950, its consequences would not revive/restore the rights to the legal heirs of late Smt. Chando and Sita Ram(original tenure holders) over the subject property in question. That apart, the present appellants have never raised any plea for cancellation of the registered sale deed executed in favour of late N.D. Chaudhary dated 24 th January, 1973 which was otherwise not the subject matter to be examined under the provisions of the Act, 1950.26. The submission of learned counsel for the appellants that interference in the concurrent finding and the exchange deed being void as the permission from Assistant Collector has not been obtained and in consequence they are entitled for restoration/possession of plot no.2902 (area 0.34 decimals) which was originally sold by registered sale deed dated 24 th January, 1973 to late N.D. Chaudhary is without substance for the reason that these are two separate transactions which has taken place of the subject plot in question. As regards the rights and interests which were transferred by the present appellants vide registered sale deed dated 24 th January, 1973 in favour of late N.D. Chaudhary was never the subject matter of scrutiny and there was no violation/contravention of the provisions of Act, 1950 or of any other law has been pointed out to us.27. At the same time, so far as non-compliance of the mandatory requirement as envisaged under Section 161 of the Act, 1950 while executing the exchange deed dated 2 nd March, 1974 is concerned, parties have to bear its consequences of the void transaction as provided under Section 166 read with Section 167 of the Act, 1950 but that will not give any preference to the appellants for restoration of their rights and to nullify the registered sale deed dated 24 th January, 1973 executed after taking due consideration in favour of late N.D. Chaudhary.28. In our considered view, the conclusions of the High Court in its judgment impugned are unassailable and does not call for our interference.To make it further clear that under the pre-amended scheme of the Act, 1950, the consequence for non-compliance of Section 161 of the Act, 1950 seeking permission from the Assistant Collector, was indeed the requirement of law and the effect of contravention and its consequence are embedded under Section 166 and 167 of the Act, 1950 but its consequential effect, in no manner, would take away or divest the rights and interest of the parties inter se conferred in reference to the sale deed which was originally executed in favour of late N.D. Chaudhary by late Smt. Chando and Sita Ram in reference to plot no. 2902 ad-measuring 0.34 decimals by the registered sale deed dated 24 th January, 1973.
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Shivnarayan Shamlal Kahar @ Gauda Vs. State of Maharashtra | hostile. In the cross-examination the prosecution has elicited that on 23/5/1999 at 6 a.m. when P.W. 13 woke up, Shivnarayan was sleeping by his side. P.W. 13 has denied having stated before the police that Shivnarayan suddenly got up in the morning and told him that we have to leave for village. He has further stated before the Court that he was detained for two days at the police station. After his brother was taken away, he was released by the police.17. P.W.14 Murlidhar Bhoj was attached as PSI to Borivali Police Station. On 23/5/1999 at about 9.15 a.m. M. Chelladurai had come to the police station and lodged the report that on the east side of Chandrakant Marble Company a dead body of a lady was found in the marble. P.W. 14 recorded the complaint and registered crime No.187/99 under Section 302 and Section 376 of Indian Penal Code. He has admitted in the cross-examination that he left Borivali Station at about 10.05 a.m. and reached the scene of offence at 10.15 a.m. He had drawn the panchanama at 10.20 a.m. Kadappa stone was removed with the help of police constables and workers. It is pertinent to note that he had not seen any blood stains on the Kadappa stone and therefore he had not seized the Kadappa stone.18. P.W. 15 Vasantrao Jadhav is the investigating officer of the said crime. He has deposed before the Court that he had prepared the panchanama of the nearest hut from the Marble company and the hut belongs to deceased Laxmi. From the hut he had seized one album of different photographs. He has identified the album in the court. He has also seized one copy of ration card and a blue packet containing photograph of the deceased. He had also recovered one condom, under garments, salwar, kurta, one piece of earing, blue colour bed sheet. On the next day on the basis of reliable information, he had nabbed the accused who according to him was to flee from Mumbai. P.W. 15 had filed charge-sheet against the accused. In the cross-examination P.W. 15 has stated that there were blood-stains on the Kadappa stone but he had not collected the blood samples. There were blood-stains on the ground. However, he had not taken the mud sample. This version is contradictory to the version of P.W. 14. P.W. 15 has further stated that the distance between the hut of deceased and the place where the body was lying is about 100 ft. There is a small way for access from the hut to the marble company. There were blood stains on the ground in the hut. There was a liquor bottle in the hut. The hut is made up of a plastic sheet. The door was open and anyone could have access. Upon enquiry P.W. 2 had disclosed to P.W. 15 that one Gotya Seth was the owner of that hut. P.W. 15 had feigned ignorance about Gotyasheth. It is pertinent to note that according to P.W. 15, the clothes which were seized under the panchanama were sent for chemical analysis after 5 to 6 days and during that period they were lying in the police station. P.W. 15 has further stated that the dead body was handed over to the husband of the deceased on 25/5/1999.19. It is a case of circumstantial evidence. It is incumbent upon the prosecution to prove every incriminating circumstance against the accused to the hilt. It is also incumbent upon the prosecution to establish the link in the chain of evidence to eliminate any and every possibility of the innocence of the accused. In the present case, the prosecution has proved the following circumstances :(i) That Shivnarayan and his brother were residing in Chandrakant Marbles Company;(ii) Shivnarayan was working as a labour in the said company.(iii) On 23/5/1999 the accused had left the premises of the company and was apprehended by the police from the house of his cousin.(iv) That the deceased Laxmi is the wife of Laxman Acche.(v) That she was residing at a distance of 100 ft. from the company.(vi) That she had been ravished and died a homicidal death.(vii) The dead body was found in the south-east corner of Chandrakant Marble Company.(viii) According to investigating officer he had conducted a detail enquiry and in the course of enquiry he had noticed blood-stains in the hut as also liquor bottle in the hut. The investigating officer had seized ration card and photographs of the deceased.20. The prosecution has failed to establish the scene of offence. Although the dead body was found in the Chandrakant Marble Company, the blood-stains, liquor bottle and a packet of condom were seized from the hut of the deceased. Upon perusal of evidence it appears that in fact no incident had taken place in the hut and therefore, the prosecution has failed to establish as to where exactly the incident had occurred. The prosecution is unable to answer as to where the act of ravishing or causing the death had occurred in the premises of the company or the hut. The fact that the accused was handcuffed would again create the doubt in respect of recovery of the ornaments which were seized. In fact, the police had found the articles of its own and there was no memorandum to that effect. Hence, the evidence in respect of recovery of incriminating articles cannot be considered in the absence of substantive evidence to that effect. The accused was arrested from the house of his cousin. There is nothing on record to indicate that the accused was ever seen in the company of the deceased. Much less to say that he was seen with the deceased in close proximity to the incident. The only circumstance is the act of the accused leaving the company in the morning. The said circumstance by itself is not sufficient to prove the guilt of the accused beyond reasonable doubt and hence, the accused is entitled to benefit of doubt. | 1[ds]19. It is a case of circumstantial evidence. It is incumbent upon the prosecution to prove every incriminating circumstance against the accused to the hilt. It is also incumbent upon the prosecution to establish the link in the chain of evidence to eliminate any and every possibility of the innocence of the accused. In the present case, the prosecution has proved the following circumstances :(i) That Shivnarayan and his brother were residing in Chandrakant Marbles Company;(ii) Shivnarayan was working as a labour in the said company.(iii) On 23/5/1999 the accused had left the premises of the company and was apprehended by the police from the house of his cousin.(iv) That the deceased Laxmi is the wife of Laxman Acche.(v) That she was residing at a distance of 100 ft. from the company.(vi) That she had been ravished and died a homicidal death.(vii) The dead body was found in thecorner of Chandrakant Marble Company.(viii) According to investigating officer he had conducted a detail enquiry and in the course of enquiry he had noticedin the hut as also liquor bottle in the hut. The investigating officer had seized ration card and photographs of the deceased.20. The prosecution has failed to establish the scene of offence. Although the dead body was found in the Chandrakant Marble Company, theliquor bottle and a packet of condom were seized from the hut of the deceased. Upon perusal of evidence it appears that in fact no incident had taken place in the hut and therefore, the prosecution has failed to establish as to where exactly the incident had occurred. The prosecution is unable to answer as to where the act of ravishing or causing the death had occurred in the premises of the company or the hut. The fact that the accused was handcuffed would again create the doubt in respect of recovery of the ornaments which were seized. In fact, the police had found the articles of its own and there was no memorandum to that effect. Hence, the evidence in respect of recovery of incriminating articles cannot be considered in the absence of substantive evidence to that effect. The accused was arrested from the house of his cousin. There is nothing on record to indicate that the accused was ever seen in the company of the deceased. Much less to say that he was seen with the deceased in close proximity to the incident. The only circumstance is the act of the accused leaving the company in the morning. The said circumstance by itself is not sufficient to prove the guilt of the accused beyond reasonable doubt and hence, the accused is entitled to benefit of doubt. | 1 | 4,038 | 502 | ### 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:
hostile. In the cross-examination the prosecution has elicited that on 23/5/1999 at 6 a.m. when P.W. 13 woke up, Shivnarayan was sleeping by his side. P.W. 13 has denied having stated before the police that Shivnarayan suddenly got up in the morning and told him that we have to leave for village. He has further stated before the Court that he was detained for two days at the police station. After his brother was taken away, he was released by the police.17. P.W.14 Murlidhar Bhoj was attached as PSI to Borivali Police Station. On 23/5/1999 at about 9.15 a.m. M. Chelladurai had come to the police station and lodged the report that on the east side of Chandrakant Marble Company a dead body of a lady was found in the marble. P.W. 14 recorded the complaint and registered crime No.187/99 under Section 302 and Section 376 of Indian Penal Code. He has admitted in the cross-examination that he left Borivali Station at about 10.05 a.m. and reached the scene of offence at 10.15 a.m. He had drawn the panchanama at 10.20 a.m. Kadappa stone was removed with the help of police constables and workers. It is pertinent to note that he had not seen any blood stains on the Kadappa stone and therefore he had not seized the Kadappa stone.18. P.W. 15 Vasantrao Jadhav is the investigating officer of the said crime. He has deposed before the Court that he had prepared the panchanama of the nearest hut from the Marble company and the hut belongs to deceased Laxmi. From the hut he had seized one album of different photographs. He has identified the album in the court. He has also seized one copy of ration card and a blue packet containing photograph of the deceased. He had also recovered one condom, under garments, salwar, kurta, one piece of earing, blue colour bed sheet. On the next day on the basis of reliable information, he had nabbed the accused who according to him was to flee from Mumbai. P.W. 15 had filed charge-sheet against the accused. In the cross-examination P.W. 15 has stated that there were blood-stains on the Kadappa stone but he had not collected the blood samples. There were blood-stains on the ground. However, he had not taken the mud sample. This version is contradictory to the version of P.W. 14. P.W. 15 has further stated that the distance between the hut of deceased and the place where the body was lying is about 100 ft. There is a small way for access from the hut to the marble company. There were blood stains on the ground in the hut. There was a liquor bottle in the hut. The hut is made up of a plastic sheet. The door was open and anyone could have access. Upon enquiry P.W. 2 had disclosed to P.W. 15 that one Gotya Seth was the owner of that hut. P.W. 15 had feigned ignorance about Gotyasheth. It is pertinent to note that according to P.W. 15, the clothes which were seized under the panchanama were sent for chemical analysis after 5 to 6 days and during that period they were lying in the police station. P.W. 15 has further stated that the dead body was handed over to the husband of the deceased on 25/5/1999.19. It is a case of circumstantial evidence. It is incumbent upon the prosecution to prove every incriminating circumstance against the accused to the hilt. It is also incumbent upon the prosecution to establish the link in the chain of evidence to eliminate any and every possibility of the innocence of the accused. In the present case, the prosecution has proved the following circumstances :(i) That Shivnarayan and his brother were residing in Chandrakant Marbles Company;(ii) Shivnarayan was working as a labour in the said company.(iii) On 23/5/1999 the accused had left the premises of the company and was apprehended by the police from the house of his cousin.(iv) That the deceased Laxmi is the wife of Laxman Acche.(v) That she was residing at a distance of 100 ft. from the company.(vi) That she had been ravished and died a homicidal death.(vii) The dead body was found in the south-east corner of Chandrakant Marble Company.(viii) According to investigating officer he had conducted a detail enquiry and in the course of enquiry he had noticed blood-stains in the hut as also liquor bottle in the hut. The investigating officer had seized ration card and photographs of the deceased.20. The prosecution has failed to establish the scene of offence. Although the dead body was found in the Chandrakant Marble Company, the blood-stains, liquor bottle and a packet of condom were seized from the hut of the deceased. Upon perusal of evidence it appears that in fact no incident had taken place in the hut and therefore, the prosecution has failed to establish as to where exactly the incident had occurred. The prosecution is unable to answer as to where the act of ravishing or causing the death had occurred in the premises of the company or the hut. The fact that the accused was handcuffed would again create the doubt in respect of recovery of the ornaments which were seized. In fact, the police had found the articles of its own and there was no memorandum to that effect. Hence, the evidence in respect of recovery of incriminating articles cannot be considered in the absence of substantive evidence to that effect. The accused was arrested from the house of his cousin. There is nothing on record to indicate that the accused was ever seen in the company of the deceased. Much less to say that he was seen with the deceased in close proximity to the incident. The only circumstance is the act of the accused leaving the company in the morning. The said circumstance by itself is not sufficient to prove the guilt of the accused beyond reasonable doubt and hence, the accused is entitled to benefit of doubt.
### Response:
1
### Explanation:
19. It is a case of circumstantial evidence. It is incumbent upon the prosecution to prove every incriminating circumstance against the accused to the hilt. It is also incumbent upon the prosecution to establish the link in the chain of evidence to eliminate any and every possibility of the innocence of the accused. In the present case, the prosecution has proved the following circumstances :(i) That Shivnarayan and his brother were residing in Chandrakant Marbles Company;(ii) Shivnarayan was working as a labour in the said company.(iii) On 23/5/1999 the accused had left the premises of the company and was apprehended by the police from the house of his cousin.(iv) That the deceased Laxmi is the wife of Laxman Acche.(v) That she was residing at a distance of 100 ft. from the company.(vi) That she had been ravished and died a homicidal death.(vii) The dead body was found in thecorner of Chandrakant Marble Company.(viii) According to investigating officer he had conducted a detail enquiry and in the course of enquiry he had noticedin the hut as also liquor bottle in the hut. The investigating officer had seized ration card and photographs of the deceased.20. The prosecution has failed to establish the scene of offence. Although the dead body was found in the Chandrakant Marble Company, theliquor bottle and a packet of condom were seized from the hut of the deceased. Upon perusal of evidence it appears that in fact no incident had taken place in the hut and therefore, the prosecution has failed to establish as to where exactly the incident had occurred. The prosecution is unable to answer as to where the act of ravishing or causing the death had occurred in the premises of the company or the hut. The fact that the accused was handcuffed would again create the doubt in respect of recovery of the ornaments which were seized. In fact, the police had found the articles of its own and there was no memorandum to that effect. Hence, the evidence in respect of recovery of incriminating articles cannot be considered in the absence of substantive evidence to that effect. The accused was arrested from the house of his cousin. There is nothing on record to indicate that the accused was ever seen in the company of the deceased. Much less to say that he was seen with the deceased in close proximity to the incident. The only circumstance is the act of the accused leaving the company in the morning. The said circumstance by itself is not sufficient to prove the guilt of the accused beyond reasonable doubt and hence, the accused is entitled to benefit of doubt.
|
All India Power Engineer Federation Vs. Sasan Power Ltd. & Ors. Etc | is clear under the Regulations, however, that infirm power can never be supplied to the appellants themselves but can only be supplied to the grid. This being the case, the question that is still posed is whether the two emails read together would amount to a waiver of the right mentioned in clause 6.3.1. Waiver is, as has been pointed out above, an intentional relinquishment of a known right. Waiver must be spelled out with crystal clarity for there must be a clear intention to give up a known right. There is no such clear intention that can be spelled out on a reading of the two emails. All that can be spelled out is that the first email of 31.3.2013 categorically states that the test result is not as per Article 6.3.1, and is not acceptable. The last sentence of this very email then refers to clause 6.3.4 and to a de-rated capacity of 101.38 MW. Thereafter, the email of 2nd April, 2013 expands on the aforesaid last sentence of the earlier email by referring to Article 6.3.4 and Article 11 proviso. This is akin to a `without prejudice acceptance of de-rated power, being a non-acceptance of the test certificate dated 30.3.2013 coupled with a desperate attempt to somehow get whatever power is available. But this does not amount to a clear and unequivocal intention to relinquish a known right. 44. It is not necessary to burden this judgment with various other acceptance emails of the other discoms inasmuch as they are all in terms of the email sent by the lead procurer. Haryana discom has sent an email dated 12.4.2013 in which, even while accepting derated power, it has accepted the same without prejudice to its rights. 45. In contrast to the aforesaid emails, the acceptance emails of BYPL and BRPL, both Reliance Group Companies, may now be quoted:- "Dear SirFrom Sasan UMPP Delhi has allocation of 450 mw as per MOP out of which BRPL share is 43.58 out of Delhi allocation. We accept the COD of 1st unit of 660 mw as declared by SPL. May please schedule Full quantum of BRPL with immediate effect and confirm.Regards.Sanjay Srivastav.Assistant VP BRPL. 9312147045Sanjay Srivastav (As V.P.)" 46. This acceptance email is in stark contrast with the acceptance email of the lead procurer, in that it unequivocally accepts COD of the first Unit of 660 MW as declared by Sasan. It is therefore clear that on facts in this case there is no waiver and the Appellate Tribunal in coming to an opposite conclusion, is clearly erroneous. 47. Interestingly enough, the Appellate Tribunal, in the impugned judgment dated 31.3.2016, contradicts itself when it states in one portion as follows:- "e) We have carefully gone through the ratio of the law laid down by Honble Supreme Court in Waman Shriniwas and in Krishan Lals case, wherein in the latter case the Honble Supreme Court cited an illustration in paragraph 21 thereof. The words of the Honble Supreme Court are "to illustrate this principle, it has been stated that if the statutory condition be imposed simply for the security or the benefit of the parties to the action themselves, such condition will not be considered as indispensable and either party may waive it." In the present case, the requirement of achieving 95% of the contracted capacity for declaration of COD was not one for the private benefit of the seller and procurers. The said requirement and the appointment of an independent expert to oversee the commissioning process was built into the statutory contract i.e. PPA itself for a specific purpose, as a requirement of general policy, to ensure that generators do not declare their units to be commercially available without even demonstrating the capability of such units to achieve at least 95% of the contracted capacity." And then goes on to state: "We further find that in the present case, there is no question of any public interest or public policy or morals or statutory regulations being violated. The WRLDC, who was a petitioner before the Central Commission, in its Petition clearly and equivocally states that there are no guidelines in respect of declaration of COD of the generators who are not governed by CERF (Tariff Regulations) 2009 and in the Petition, WRLDC prays to the Central Commission for issuing regulations and guidelines in that behalf." 48. We thus find that the Appellate Tribunal is wholly incorrect in accepting the case of waiver put forward by learned counsel for Sasan, and is equally incorrect in absolving the independent engineer for the test certificate given by him on 30.3.2013. We, therefore, set aside the Appellate Tribunals judgment, and reinstate the judgment dated 8.8.2014 of the Central Electricity Regulatory Commission. 49. Shri Sibals last argument is that there is no substantial question of law so as to attract Section 125 of the Electricity Act, 2003 in these appeals. We are afraid that we cannot agree. One substantial question of law is whether, when public interest is involved, waiver can at all take place of a right in favour of the generator of electricity under a PPA if the right also has an impact on consumer interest. This substantial question of law has been answered by us in the course of the judgment. We have also pointed out that the Appellate Tribunals finding that the Independent Engineers test certificate can pass muster and that there is a waiver on facts is not a possible conclusion, and such finding is, therefore, perverse and hence set aside. That apart, we have also pointed out the contradictory nature of the judgment of the Appellate Tribunal, when it points out that the requirement of Article 6.3.1 is not merely for the private benefit of the procurers of electricity, but is as a matter of general policy; and then later on in the judgment finds that no question of public interest or public policy arises in the present case. In these circumstances, this plea must also be turned down. | 1[ds]15. No such thing having occurred on the present facts, it is clear that there is in fact no amendment by written agreement to the PPA.The relevant section therefore that would apply on the facts of the present case is Section 63. At this stage, it is important to advert to an argument made by counsel for the appellants that Article 18.3 only refers to waivers that can expressly be made under various provisions of the agreement and not to Article 6 which, according to learned counsel, cannot be waived under the PPA. Assuming that such argument is correct, and that Article 18.3 refers only to the mode of carrying out a waiver under the PPA, yet it is clear that Section 63 would operate on the facts of this case. This is for the reason that, when read with Section 1 of the Contract Act, it becomes clear that the PPA is subject to Section 63 of the Contract Act, which would allow a promisee to dispense with or remit, wholly or in part, the performance of the promise made to him, and accept instead of it any satisfaction which he thinks fit.It is thus clear that if on facts there is a waiver of a provision of the PPA by one of the parties to the PPA, then Section 63 of the Contract Act will operate in order to give effect to suchis clear that when waiver is spoken of in the realm of contract, Section 63 of the Indian Contract Act governs. But it is important to note that waiver is an intentional relinquishment of a known right, and that, therefore, unless there is a clear intention to relinquish a right that is fully known to a party, a party cannot be said to waive it. But the matter does not end here. It is also clear that if any element of public interest is involved and a waiver takes place by one of the parties to an agreement, such waiver will not be given effect to if it is contrary to such public interest. This is clear from a reading of the following authorities.It is thus clear that if there is any element of public interest involved, the court steps in to thwart any waiver which may be contrary to such public interest.25. On the facts of this case, it is clear that the moment electricity tariff gets affected, the consumer interest comes in and public interest gets affected. This is in fact statutorily recognized by the Electricity Act in Sections 61 to 63 thereof. Under Section 61, the appropriate commission, when it specifies terms and conditions for determination of tariff, is to be guided inter alia by the safeguarding of the consumer interest and the recovery of the cost of electricity in a reasonable manner. For this purpose, factors that encourage competition, efficiency and good performance are also to be heeded. Under Section 62 of the Act, the appropriate commission is to determine such tariff in accordance with the principles contained in Section 61. The present case, however, is covered by Section 63, which begins with a non obstante clause stating that notwithstanding anything contained in Section 62, the appropriate commission shall adopt the tariff if such tariff has been determined through a transparent process of bidding in accordance with the guidelines issued by the Central Government.A perusal of the CERC tariff adoption order in the present case dated 17.10.2007 makes it clear that the tariff is adopted by the Commission only because the competitive bidding process which has been undertaken is in accordance with the guidelines so issued.30. All this would make it clear that even if a waiver is claimed of some of the provisions of the PPA, such waiver, if it affects tariffs that are ultimately payable by the consumer, would necessarily affect public interest and would have to pass muster of the Commission under Sections 61 to 63 of the Electricity Act. This is for the reason that what is adopted by the Commission under Section 63 is only a tariff obtained by competitive bidding in conformity with guidelines issued. If at any subsequent point of time such tariff is increased, which increase is outside the four corners of the PPA, even in cases covered by Section 63, the legislative intent and the language of Sections 61 and 62 make it clear that the Commission alone can accept such amended tariff as it would impact consumer interest and therefore publiccase of the appellants has throughout been, starting from 12th April, 2013, onwards, that it has never consented to Schedule 5 of the PPA and Article 6.3.1(b) parameters being lowered. It is true that Article 6.3.4 would not apply for the reason that it would come into effect only after the last recent performance test mentioned in Article 6.3.3 has been conducted. And for Article 6.3.3 to apply, a performance test must first indicate that from a units COD an increased tested capacity over and above that provided in Article 6.3.1(b) must first occur. Admittedly on facts this has not happened. What is important to note therefore is that the appellants desperately wanted power at a cheaper rate, and were willing to go to any extent to get such power, including invoking clause 6.3.4, which would not apply, and stating that anything over and above 101.38 MW ought to be treated as infirm power. It is clear under the Regulations, however, that infirm power can never be supplied to the appellants themselves but can only be supplied to the grid.Waiver is, as has been pointed out above, an intentional relinquishment of a known right. Waiver must be spelled out with crystal clarity for there must be a clear intention to give up a known right. There is no such clear intention that can be spelled out on a reading of the two emails. All that can be spelled out is that the first email of 31.3.2013 categorically states that the test result is not as per Article 6.3.1, and is not acceptable. The last sentence of this very email then refers to clause 6.3.4 and to a de-rated capacity of 101.38 MW. Thereafter, the email of 2nd April, 2013 expands on the aforesaid last sentence of the earlier email by referring to Article 6.3.4 and Article 11 proviso. This is akin to a `without prejudice acceptance of de-rated power, being a non-acceptance of the test certificate dated 30.3.2013 coupled with a desperate attempt to somehow get whatever power is available. But this does not amount to a clear and unequivocal intention to relinquish a known right.We thus find that the Appellate Tribunal is wholly incorrect in accepting the case of waiver put forward by learned counsel for Sasan, and is equally incorrect in absolving the independent engineer for the test certificate given by him on 30.3.2013. We, therefore, set aside the Appellate Tribunals judgment, and reinstate the judgment dated 8.8.2014 of the Central Electricity Regulatorysubstantial question of law has been answered by us in the course of the judgment. We have also pointed out that the Appellate Tribunals finding that the Independent Engineers test certificate can pass muster and that there is a waiver on facts is not a possible conclusion, and such finding is, therefore, perverse and hence set aside. That apart, we have also pointed out the contradictory nature of the judgment of the Appellate Tribunal, when it points out that the requirement of Article 6.3.1 is not merely for the private benefit of the procurers of electricity, but is as a matter of general policy; and then later on in the judgment finds that no question of public interest or public policy arises in the present case. In these circumstances, this plea must also be turned | 1 | 16,028 | 1,410 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
is clear under the Regulations, however, that infirm power can never be supplied to the appellants themselves but can only be supplied to the grid. This being the case, the question that is still posed is whether the two emails read together would amount to a waiver of the right mentioned in clause 6.3.1. Waiver is, as has been pointed out above, an intentional relinquishment of a known right. Waiver must be spelled out with crystal clarity for there must be a clear intention to give up a known right. There is no such clear intention that can be spelled out on a reading of the two emails. All that can be spelled out is that the first email of 31.3.2013 categorically states that the test result is not as per Article 6.3.1, and is not acceptable. The last sentence of this very email then refers to clause 6.3.4 and to a de-rated capacity of 101.38 MW. Thereafter, the email of 2nd April, 2013 expands on the aforesaid last sentence of the earlier email by referring to Article 6.3.4 and Article 11 proviso. This is akin to a `without prejudice acceptance of de-rated power, being a non-acceptance of the test certificate dated 30.3.2013 coupled with a desperate attempt to somehow get whatever power is available. But this does not amount to a clear and unequivocal intention to relinquish a known right. 44. It is not necessary to burden this judgment with various other acceptance emails of the other discoms inasmuch as they are all in terms of the email sent by the lead procurer. Haryana discom has sent an email dated 12.4.2013 in which, even while accepting derated power, it has accepted the same without prejudice to its rights. 45. In contrast to the aforesaid emails, the acceptance emails of BYPL and BRPL, both Reliance Group Companies, may now be quoted:- "Dear SirFrom Sasan UMPP Delhi has allocation of 450 mw as per MOP out of which BRPL share is 43.58 out of Delhi allocation. We accept the COD of 1st unit of 660 mw as declared by SPL. May please schedule Full quantum of BRPL with immediate effect and confirm.Regards.Sanjay Srivastav.Assistant VP BRPL. 9312147045Sanjay Srivastav (As V.P.)" 46. This acceptance email is in stark contrast with the acceptance email of the lead procurer, in that it unequivocally accepts COD of the first Unit of 660 MW as declared by Sasan. It is therefore clear that on facts in this case there is no waiver and the Appellate Tribunal in coming to an opposite conclusion, is clearly erroneous. 47. Interestingly enough, the Appellate Tribunal, in the impugned judgment dated 31.3.2016, contradicts itself when it states in one portion as follows:- "e) We have carefully gone through the ratio of the law laid down by Honble Supreme Court in Waman Shriniwas and in Krishan Lals case, wherein in the latter case the Honble Supreme Court cited an illustration in paragraph 21 thereof. The words of the Honble Supreme Court are "to illustrate this principle, it has been stated that if the statutory condition be imposed simply for the security or the benefit of the parties to the action themselves, such condition will not be considered as indispensable and either party may waive it." In the present case, the requirement of achieving 95% of the contracted capacity for declaration of COD was not one for the private benefit of the seller and procurers. The said requirement and the appointment of an independent expert to oversee the commissioning process was built into the statutory contract i.e. PPA itself for a specific purpose, as a requirement of general policy, to ensure that generators do not declare their units to be commercially available without even demonstrating the capability of such units to achieve at least 95% of the contracted capacity." And then goes on to state: "We further find that in the present case, there is no question of any public interest or public policy or morals or statutory regulations being violated. The WRLDC, who was a petitioner before the Central Commission, in its Petition clearly and equivocally states that there are no guidelines in respect of declaration of COD of the generators who are not governed by CERF (Tariff Regulations) 2009 and in the Petition, WRLDC prays to the Central Commission for issuing regulations and guidelines in that behalf." 48. We thus find that the Appellate Tribunal is wholly incorrect in accepting the case of waiver put forward by learned counsel for Sasan, and is equally incorrect in absolving the independent engineer for the test certificate given by him on 30.3.2013. We, therefore, set aside the Appellate Tribunals judgment, and reinstate the judgment dated 8.8.2014 of the Central Electricity Regulatory Commission. 49. Shri Sibals last argument is that there is no substantial question of law so as to attract Section 125 of the Electricity Act, 2003 in these appeals. We are afraid that we cannot agree. One substantial question of law is whether, when public interest is involved, waiver can at all take place of a right in favour of the generator of electricity under a PPA if the right also has an impact on consumer interest. This substantial question of law has been answered by us in the course of the judgment. We have also pointed out that the Appellate Tribunals finding that the Independent Engineers test certificate can pass muster and that there is a waiver on facts is not a possible conclusion, and such finding is, therefore, perverse and hence set aside. That apart, we have also pointed out the contradictory nature of the judgment of the Appellate Tribunal, when it points out that the requirement of Article 6.3.1 is not merely for the private benefit of the procurers of electricity, but is as a matter of general policy; and then later on in the judgment finds that no question of public interest or public policy arises in the present case. In these circumstances, this plea must also be turned down.
### Response:
1
### Explanation:
waive it. But the matter does not end here. It is also clear that if any element of public interest is involved and a waiver takes place by one of the parties to an agreement, such waiver will not be given effect to if it is contrary to such public interest. This is clear from a reading of the following authorities.It is thus clear that if there is any element of public interest involved, the court steps in to thwart any waiver which may be contrary to such public interest.25. On the facts of this case, it is clear that the moment electricity tariff gets affected, the consumer interest comes in and public interest gets affected. This is in fact statutorily recognized by the Electricity Act in Sections 61 to 63 thereof. Under Section 61, the appropriate commission, when it specifies terms and conditions for determination of tariff, is to be guided inter alia by the safeguarding of the consumer interest and the recovery of the cost of electricity in a reasonable manner. For this purpose, factors that encourage competition, efficiency and good performance are also to be heeded. Under Section 62 of the Act, the appropriate commission is to determine such tariff in accordance with the principles contained in Section 61. The present case, however, is covered by Section 63, which begins with a non obstante clause stating that notwithstanding anything contained in Section 62, the appropriate commission shall adopt the tariff if such tariff has been determined through a transparent process of bidding in accordance with the guidelines issued by the Central Government.A perusal of the CERC tariff adoption order in the present case dated 17.10.2007 makes it clear that the tariff is adopted by the Commission only because the competitive bidding process which has been undertaken is in accordance with the guidelines so issued.30. All this would make it clear that even if a waiver is claimed of some of the provisions of the PPA, such waiver, if it affects tariffs that are ultimately payable by the consumer, would necessarily affect public interest and would have to pass muster of the Commission under Sections 61 to 63 of the Electricity Act. This is for the reason that what is adopted by the Commission under Section 63 is only a tariff obtained by competitive bidding in conformity with guidelines issued. If at any subsequent point of time such tariff is increased, which increase is outside the four corners of the PPA, even in cases covered by Section 63, the legislative intent and the language of Sections 61 and 62 make it clear that the Commission alone can accept such amended tariff as it would impact consumer interest and therefore publiccase of the appellants has throughout been, starting from 12th April, 2013, onwards, that it has never consented to Schedule 5 of the PPA and Article 6.3.1(b) parameters being lowered. It is true that Article 6.3.4 would not apply for the reason that it would come into effect only after the last recent performance test mentioned in Article 6.3.3 has been conducted. And for Article 6.3.3 to apply, a performance test must first indicate that from a units COD an increased tested capacity over and above that provided in Article 6.3.1(b) must first occur. Admittedly on facts this has not happened. What is important to note therefore is that the appellants desperately wanted power at a cheaper rate, and were willing to go to any extent to get such power, including invoking clause 6.3.4, which would not apply, and stating that anything over and above 101.38 MW ought to be treated as infirm power. It is clear under the Regulations, however, that infirm power can never be supplied to the appellants themselves but can only be supplied to the grid.Waiver is, as has been pointed out above, an intentional relinquishment of a known right. Waiver must be spelled out with crystal clarity for there must be a clear intention to give up a known right. There is no such clear intention that can be spelled out on a reading of the two emails. All that can be spelled out is that the first email of 31.3.2013 categorically states that the test result is not as per Article 6.3.1, and is not acceptable. The last sentence of this very email then refers to clause 6.3.4 and to a de-rated capacity of 101.38 MW. Thereafter, the email of 2nd April, 2013 expands on the aforesaid last sentence of the earlier email by referring to Article 6.3.4 and Article 11 proviso. This is akin to a `without prejudice acceptance of de-rated power, being a non-acceptance of the test certificate dated 30.3.2013 coupled with a desperate attempt to somehow get whatever power is available. But this does not amount to a clear and unequivocal intention to relinquish a known right.We thus find that the Appellate Tribunal is wholly incorrect in accepting the case of waiver put forward by learned counsel for Sasan, and is equally incorrect in absolving the independent engineer for the test certificate given by him on 30.3.2013. We, therefore, set aside the Appellate Tribunals judgment, and reinstate the judgment dated 8.8.2014 of the Central Electricity Regulatorysubstantial question of law has been answered by us in the course of the judgment. We have also pointed out that the Appellate Tribunals finding that the Independent Engineers test certificate can pass muster and that there is a waiver on facts is not a possible conclusion, and such finding is, therefore, perverse and hence set aside. That apart, we have also pointed out the contradictory nature of the judgment of the Appellate Tribunal, when it points out that the requirement of Article 6.3.1 is not merely for the private benefit of the procurers of electricity, but is as a matter of general policy; and then later on in the judgment finds that no question of public interest or public policy arises in the present case. In these circumstances, this plea must also be turned
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Dr. Vijay Kumar & Others Vs. M/s. Raghbir Singh Anokh Singh | Dwivedi, J.1. The first appellant, Dr. Vijay Kumar, is the father of the second and third appellants, Ajay Kumar and Ashok Kumar. Dr. Vijay Kumar was the tenant of the shop No. 2855, Guru Nanak Building, Kashmiri Gate, Delhi. The respondent is the owner of the shop. On January 12, 1965 he applied for ejectment of the appellants from the shop. The application was made to the Rent Controller under proviso (b) to sub-section (i) of Section 14 of the Delhi Rent Control Act, 1958. The application alleged that the first appellant has sub-let, assigned or otherwise parted with a part of the shop to the other appellants. The application was contested by the appellants. By his order, dated December 6, 1966, the Rent Controller allowed the application and directed ejectment of the appellants. Their first appeal against his order was dismissed by the Rent Control Tribunal on April 25, 1968. Their second appeal was dismissed by the High Court of Delhi on October 29, 1971. They have preferred the present appeal by special leave.2. The Rent Controller has found that the appellants have partitioned the shop in two portions. The two portions are demarcated by a wooden partition wall. In one portion there is the clinic of the first appellant. In the other portion the other appellants are carrying on the business of sale and purchase of motor cars. The wooden partition wall has divided the single door of the shop in two parts, so that there are now two doors, one in the portion in the occupation of the first appellant and the other in the portion in the occupation of the other appellants. One cannot go directly from one portion to the other on account of the wooden partition wall. The first appellant locks his portion. The other appellants lock their portion separately. On these findings the Rent Controller has held that the second and third appellants are in exclusive possession of their portion. Hence he has come to the conclusion that the first appellant has parted with possession of their portion to them. The Rent Controller did not accept the plea of the appellants that the business which was being carried on in their portion was the joint business of all the appellants. The first appellant is assessed to Income-tax. He has never shown the income from the motor business in his Income-tax returns. The appellants did not produce the account books of the motor business. The Rent Controller accordingly held that the plea of joint business has not been established.3. The findings of facts and the conclusions reached by the Rent Controller were confirmed by the Rent Control Tribunal. The High Court agreed with the appellate authority. These findings cannot be - impeached before us. In the result, we would accept the conclusion of the Rent Controller that half of the shop was exclusively occupied by the second and third appellants and that the first appellant has parted with possession of that portion to them. The rejection by the Rent Controller of the plea of joint business also cannot be disturbed by us. It is a well reasoned finding4. Counsel for the appellants has urged before us that the first appellant, being the father of the other two appellants established them in the business and permitted them to occupy a half portion of the shop for that purpose. As a father it was natural for him to establish them in life In short, the argument-is that the second and third appellants were occupying a half portion of the shop with his permission.5. It is a plausible argument, but we are unable to entertain it at this stage. Such a plea was never taken in their written statement. It was not pressed even during the hearing before the Rent Controller or the Rent Control Tribunal or the High Court. It has been taken for the first time in the special leave petition. The plea is inconsistent with the plea taken in the written statement. In the written statement the plea, in substance, was that the first appellant was in possession over the entire accommodation. The plea now sought to be raised is that the second and third appellants were in possession of the half portion of the shop exclusively but with his permission. The new plea is not a pleading of law; it is a pleading of fact. The respondent had no opportunity of confuting the plea. If we allow the appellants to take the new plea now, it is likely to cause him prejudice.6. No presumption can be drawn from mere relationship of the father and son or from joint living and joint messing that the second and third appellants were in permissive possession of the half portion. If the appellants had taken this plea in their written statement, the respondent would have got an opportunity of proving that the plea was false.7. Having regard to these circumstances, we are not permitting the appellants to raise the new plea. It is now too late. | 0[ds]3. The findings of facts and the conclusions reached by the Rent Controller were confirmed by the Rent Control Tribunal. The High Court agreed with the appellate authority. These findings cannot beimpeached before us. In the result, we would accept the conclusion of the Rent Controller that half of the shop was exclusively occupied by the second and third appellants and that the first appellant has parted with possession of that portion to them. The rejection by the Rent Controller of the plea of joint business also cannot be disturbed by us. It is a well reasonedIt is a plausible argument, but we are unable to entertain it at this stage. Such a plea was never taken in their written statement. It was not pressed even during the hearing before the Rent Controller or the Rent Control Tribunal or the High Court. It has been taken for the first time in the special leave petition. The plea is inconsistent with the plea taken in the written statement. In the written statement the plea, in substance, was that the first appellant was in possession over the entire accommodation. The plea now sought to be raised is that the second and third appellants were in possession of the half portion of the shop exclusively but with his permission. The new plea is not a pleading of law; it is a pleading of fact. The respondent had no opportunity of confuting the plea. If we allow the appellants to take the new plea now, it is likely to cause him prejudice.6. No presumption can be drawn from mere relationship of the father and son or from joint living and joint messing that the second and third appellants were in permissive possession of the half portion. If the appellants had taken this plea in their written statement, the respondent would have got an opportunity of proving that the plea was false.7. Having regard to these circumstances, we are not permitting the appellants to raise the new plea. It is now too late. | 0 | 923 | 372 | ### 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:
Dwivedi, J.1. The first appellant, Dr. Vijay Kumar, is the father of the second and third appellants, Ajay Kumar and Ashok Kumar. Dr. Vijay Kumar was the tenant of the shop No. 2855, Guru Nanak Building, Kashmiri Gate, Delhi. The respondent is the owner of the shop. On January 12, 1965 he applied for ejectment of the appellants from the shop. The application was made to the Rent Controller under proviso (b) to sub-section (i) of Section 14 of the Delhi Rent Control Act, 1958. The application alleged that the first appellant has sub-let, assigned or otherwise parted with a part of the shop to the other appellants. The application was contested by the appellants. By his order, dated December 6, 1966, the Rent Controller allowed the application and directed ejectment of the appellants. Their first appeal against his order was dismissed by the Rent Control Tribunal on April 25, 1968. Their second appeal was dismissed by the High Court of Delhi on October 29, 1971. They have preferred the present appeal by special leave.2. The Rent Controller has found that the appellants have partitioned the shop in two portions. The two portions are demarcated by a wooden partition wall. In one portion there is the clinic of the first appellant. In the other portion the other appellants are carrying on the business of sale and purchase of motor cars. The wooden partition wall has divided the single door of the shop in two parts, so that there are now two doors, one in the portion in the occupation of the first appellant and the other in the portion in the occupation of the other appellants. One cannot go directly from one portion to the other on account of the wooden partition wall. The first appellant locks his portion. The other appellants lock their portion separately. On these findings the Rent Controller has held that the second and third appellants are in exclusive possession of their portion. Hence he has come to the conclusion that the first appellant has parted with possession of their portion to them. The Rent Controller did not accept the plea of the appellants that the business which was being carried on in their portion was the joint business of all the appellants. The first appellant is assessed to Income-tax. He has never shown the income from the motor business in his Income-tax returns. The appellants did not produce the account books of the motor business. The Rent Controller accordingly held that the plea of joint business has not been established.3. The findings of facts and the conclusions reached by the Rent Controller were confirmed by the Rent Control Tribunal. The High Court agreed with the appellate authority. These findings cannot be - impeached before us. In the result, we would accept the conclusion of the Rent Controller that half of the shop was exclusively occupied by the second and third appellants and that the first appellant has parted with possession of that portion to them. The rejection by the Rent Controller of the plea of joint business also cannot be disturbed by us. It is a well reasoned finding4. Counsel for the appellants has urged before us that the first appellant, being the father of the other two appellants established them in the business and permitted them to occupy a half portion of the shop for that purpose. As a father it was natural for him to establish them in life In short, the argument-is that the second and third appellants were occupying a half portion of the shop with his permission.5. It is a plausible argument, but we are unable to entertain it at this stage. Such a plea was never taken in their written statement. It was not pressed even during the hearing before the Rent Controller or the Rent Control Tribunal or the High Court. It has been taken for the first time in the special leave petition. The plea is inconsistent with the plea taken in the written statement. In the written statement the plea, in substance, was that the first appellant was in possession over the entire accommodation. The plea now sought to be raised is that the second and third appellants were in possession of the half portion of the shop exclusively but with his permission. The new plea is not a pleading of law; it is a pleading of fact. The respondent had no opportunity of confuting the plea. If we allow the appellants to take the new plea now, it is likely to cause him prejudice.6. No presumption can be drawn from mere relationship of the father and son or from joint living and joint messing that the second and third appellants were in permissive possession of the half portion. If the appellants had taken this plea in their written statement, the respondent would have got an opportunity of proving that the plea was false.7. Having regard to these circumstances, we are not permitting the appellants to raise the new plea. It is now too late.
### Response:
0
### Explanation:
3. The findings of facts and the conclusions reached by the Rent Controller were confirmed by the Rent Control Tribunal. The High Court agreed with the appellate authority. These findings cannot beimpeached before us. In the result, we would accept the conclusion of the Rent Controller that half of the shop was exclusively occupied by the second and third appellants and that the first appellant has parted with possession of that portion to them. The rejection by the Rent Controller of the plea of joint business also cannot be disturbed by us. It is a well reasonedIt is a plausible argument, but we are unable to entertain it at this stage. Such a plea was never taken in their written statement. It was not pressed even during the hearing before the Rent Controller or the Rent Control Tribunal or the High Court. It has been taken for the first time in the special leave petition. The plea is inconsistent with the plea taken in the written statement. In the written statement the plea, in substance, was that the first appellant was in possession over the entire accommodation. The plea now sought to be raised is that the second and third appellants were in possession of the half portion of the shop exclusively but with his permission. The new plea is not a pleading of law; it is a pleading of fact. The respondent had no opportunity of confuting the plea. If we allow the appellants to take the new plea now, it is likely to cause him prejudice.6. No presumption can be drawn from mere relationship of the father and son or from joint living and joint messing that the second and third appellants were in permissive possession of the half portion. If the appellants had taken this plea in their written statement, the respondent would have got an opportunity of proving that the plea was false.7. Having regard to these circumstances, we are not permitting the appellants to raise the new plea. It is now too late.
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Malwa Sugar Mills Limited Vs. Workmen | Vaidialingam, J.1. The only question that arises for consideration in this appeal, by special leave, is regarding the directions given in the award dated October 25, 1970 by the Industrial Tribunal, in respect of issue No. 4. Issue No. 4 was as follow :"Whether increase in Dearness Allowance granted to the workmen from January 1, 1968, should be by 18 points in terms of Wage Board award instead of 17 points as allowed by the management ? If so, with what details ?2. According to the appellant, the Dearness Allowance has been given by the Tribunal at the rate fixed by the Second Wage Board for Sugar Industry which came into effect only from November, 1970. According to Mr. Dang, learned for the appellant, the management was prepared to pay at the rates fixed by the First Wage Board for Sugar Industry, whose report was published in 1960.3. The reference to the Industrial Tribunal was made by the Notification dated September 23, 1969. There is no controversy that at that time the recommendations which were in force were those made by the First Wage board for Sugar Industry. The First Wage Board was appointed on December 26, 1957 and its report was published in 1960. The relevant part of the recommendations contained in the report of the First Wage Board as paragraph 232, particularly clause (b), is as follow :"232. Part II of the scheme comprises of the following system of D.A. rates linked to cost of living index to provide for adjustment in emoluments consequent to substantial changes in the living cost.PART II OF THE D.A. SCHEME(a) The cost of living index series to be taken for each region shall uniformally be the All India Average Consumer Price Index Numbers for Working Class (Base 1949).(b) For rises over 123 points of costs of living index or fall below the level, adjustments in dearness amount shall not be made for less than 10 whole points. Once there has been rise or fall by 10 or more whole points, adjustment will be for every point of the rise or fall. Once an adjustment has been made, further adjustment shall be made for further rise, or fall of ten or more whole points.* * * *4. It is clear that the directions given by the Tribunal regarding Dearness Allowance are contrary to the principles laid down in the above paragraph. But as mentioned earlier, the appellant is prepared to pay Dearness Allowance at the rate mentioned in the recommendations of the First Wage Board for Sugar Industry contained in the paragraph extracted earlier. Admittedly, the directions in the Award regarding Dearness Allowance have been given on the basis of the recommendations given by the Second Wage Board for Sugar Industry, which recommendations became effective only from November, 1970. The award itself was passed on October 25, 1970, even before the recommendations of the Second Wage Board became effective.5. But it has become unnecessary for us to go more elaborately into these aspects because of the stand taken, which in our opinion was quite fair, by the learned Counsel for the appellant that his client will pay Dearness Allowance for the year 1967-68 on the basis of 18 points raise as mentioned in the award only as an ad hoc or an ex gratia payment subject to the condition that the said payment will not be taken into account for the purpose of fitment which may arise when the recommendations of the Second Wage Board have to be implemented. This offer made on behalf of the appellant has been unconditionally accepted by Mr. Agarwala, learned Counsel appearing for the respondents.6. In view of this agreement, expressed before us the award of the Industrial Tribunal in respect of issue No. 4 will stand modified as follow :The appellant will pay an ex gratia payment for the year 1967-68 Dearness Allowance on the basis of 18 points rise. Any payments already made will be adjusted towards the amount payable under this order. It is also made clear that the said payment is an ex gratia payment and that it will not be taken into account for the purpose of fitment when the recommendations of the Second Central Wage Board for Sugar Industry require to be implemented. | 1[ds]5. But it has become unnecessary for us to go more elaborately into these aspects because of the stand taken, which in our opinion was quite fair, by the learned Counsel for the appellant that his client will pay Dearness Allowance for the yearon the basis of 18 points raise as mentioned in the award only as an ad hoc or an ex gratia payment subject to the condition that the said payment will not be taken into account for the purpose of fitment which may arise when the recommendations of the Second Wage Board have to be implemented. This offer made on behalf of the appellant has been unconditionally accepted by Mr. Agarwala, learned Counsel appearing for the respondents.6. In view of this agreement, expressed before us the award of the Industrial Tribunal in respect of issue No. 4 will stand modified as follow :The appellant will pay an ex gratia payment for the yearDearness Allowance on the basis of 18 points rise. Any payments already made will be adjusted towards the amount payable under this order. It is also made clear that the said payment is an ex gratia payment and that it will not be taken into account for the purpose of fitment when the recommendations of the Second Central Wage Board for Sugar Industry require to be implemented. | 1 | 788 | 238 | ### 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:
Vaidialingam, J.1. The only question that arises for consideration in this appeal, by special leave, is regarding the directions given in the award dated October 25, 1970 by the Industrial Tribunal, in respect of issue No. 4. Issue No. 4 was as follow :"Whether increase in Dearness Allowance granted to the workmen from January 1, 1968, should be by 18 points in terms of Wage Board award instead of 17 points as allowed by the management ? If so, with what details ?2. According to the appellant, the Dearness Allowance has been given by the Tribunal at the rate fixed by the Second Wage Board for Sugar Industry which came into effect only from November, 1970. According to Mr. Dang, learned for the appellant, the management was prepared to pay at the rates fixed by the First Wage Board for Sugar Industry, whose report was published in 1960.3. The reference to the Industrial Tribunal was made by the Notification dated September 23, 1969. There is no controversy that at that time the recommendations which were in force were those made by the First Wage board for Sugar Industry. The First Wage Board was appointed on December 26, 1957 and its report was published in 1960. The relevant part of the recommendations contained in the report of the First Wage Board as paragraph 232, particularly clause (b), is as follow :"232. Part II of the scheme comprises of the following system of D.A. rates linked to cost of living index to provide for adjustment in emoluments consequent to substantial changes in the living cost.PART II OF THE D.A. SCHEME(a) The cost of living index series to be taken for each region shall uniformally be the All India Average Consumer Price Index Numbers for Working Class (Base 1949).(b) For rises over 123 points of costs of living index or fall below the level, adjustments in dearness amount shall not be made for less than 10 whole points. Once there has been rise or fall by 10 or more whole points, adjustment will be for every point of the rise or fall. Once an adjustment has been made, further adjustment shall be made for further rise, or fall of ten or more whole points.* * * *4. It is clear that the directions given by the Tribunal regarding Dearness Allowance are contrary to the principles laid down in the above paragraph. But as mentioned earlier, the appellant is prepared to pay Dearness Allowance at the rate mentioned in the recommendations of the First Wage Board for Sugar Industry contained in the paragraph extracted earlier. Admittedly, the directions in the Award regarding Dearness Allowance have been given on the basis of the recommendations given by the Second Wage Board for Sugar Industry, which recommendations became effective only from November, 1970. The award itself was passed on October 25, 1970, even before the recommendations of the Second Wage Board became effective.5. But it has become unnecessary for us to go more elaborately into these aspects because of the stand taken, which in our opinion was quite fair, by the learned Counsel for the appellant that his client will pay Dearness Allowance for the year 1967-68 on the basis of 18 points raise as mentioned in the award only as an ad hoc or an ex gratia payment subject to the condition that the said payment will not be taken into account for the purpose of fitment which may arise when the recommendations of the Second Wage Board have to be implemented. This offer made on behalf of the appellant has been unconditionally accepted by Mr. Agarwala, learned Counsel appearing for the respondents.6. In view of this agreement, expressed before us the award of the Industrial Tribunal in respect of issue No. 4 will stand modified as follow :The appellant will pay an ex gratia payment for the year 1967-68 Dearness Allowance on the basis of 18 points rise. Any payments already made will be adjusted towards the amount payable under this order. It is also made clear that the said payment is an ex gratia payment and that it will not be taken into account for the purpose of fitment when the recommendations of the Second Central Wage Board for Sugar Industry require to be implemented.
### Response:
1
### Explanation:
5. But it has become unnecessary for us to go more elaborately into these aspects because of the stand taken, which in our opinion was quite fair, by the learned Counsel for the appellant that his client will pay Dearness Allowance for the yearon the basis of 18 points raise as mentioned in the award only as an ad hoc or an ex gratia payment subject to the condition that the said payment will not be taken into account for the purpose of fitment which may arise when the recommendations of the Second Wage Board have to be implemented. This offer made on behalf of the appellant has been unconditionally accepted by Mr. Agarwala, learned Counsel appearing for the respondents.6. In view of this agreement, expressed before us the award of the Industrial Tribunal in respect of issue No. 4 will stand modified as follow :The appellant will pay an ex gratia payment for the yearDearness Allowance on the basis of 18 points rise. Any payments already made will be adjusted towards the amount payable under this order. It is also made clear that the said payment is an ex gratia payment and that it will not be taken into account for the purpose of fitment when the recommendations of the Second Central Wage Board for Sugar Industry require to be implemented.
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COUNCIL OF ARCHITECTURE Vs. MR. MUKESH GOYAL & ORS | a phenomenal scale. A large variety of buildings, many of extreme complexity and magnitude like multi-storeyed office buildings, factory buildings, residential houses, are being constructed each year. With this increase in the building activity, many unqualified persons calling themselves as Architects are undertaking the construction of buildings which are uneconomical and quite frequently are unsafe, thus bringing into disrepute the profession of architects. Various organisations, including the Indian Institute of Architects, have repeatedly emphasised the need for statutory regulation to protect the general public from unqualified persons working as architects. With the passing of this legislation, it will be unlawful for any person to designate himself as „architect unless he has the requisite qualifications and experience and is registered under the Act. … 3. The legislation protects the title architects but does not make the design, supervision and construction of buildings as an exclusive responsibility of architects. Other professions like engineers will be free to engage themselves in their normal vocation in respect of building construction work provided that they do not style themselves as architects. (Emphasis supplied) The Statement of Objects and Reasons of the Architects Act makes it evident that the legislature was undoubtedly concerned with the risk of unqualified persons undertaking the construction of buildings leading to costly and dangerous buildings. In guarding against this risk, the legislature first set out a minimum standard of statutorily recognised qualifications to be met before an individual is designated as an architect under the Architects Act. This is done by Sections 14, 15 and 17 of the Act. Next, the legislature created two classes of individuals: the first class consisted of registered architects satisfying these minimum qualifications and a second class of unregistered individuals who did not satisfy these minimum qualifications. This is the effect of Sections 2(a), 17, 23 and 35 of the Architects Act. Crucially, the legislature chose to define an architect as an individual registered under the Architects Act and not as an individual practicing architecture or any cognate activities. Thus, the legislature limited the regulatory regime created by the Architects Act to the first class of individuals. In protecting the public from the risk of the second class, untrained individuals, the legislature had two options: first it could bar this second class of individuals from engaging in the profession altogether (as it had done with physicians and advocates); or alternatively it could prevent this second class of individuals from calling themselves Architects. The Statement of Objects and Reasons makes it clear that the legislature chose the second option and in fact went to great lengths to clarify that choice. The legislature stated that with the passing of the legislation, it shall be unlawful for an unregistered individual to designate himself as an architect. Further, it is expressly stated that the legislation protects the title of architect but does not grant registered architects an exclusive right to undertake the design, supervision and construction of buildings. Other cognate professions or unregistered individuals may continue to carry out these activities provided that they do not refer to themselves as A rchitects. 30. It is evident that the legislature did not intend to create a prohibition on the practice of architecture and associated activities by unregistered individuals. As opposed to the case of physicians or surgeons under the Indian Medical Council Act or advocates under the Advocates Act, the legislature consciously chose to employ a less stringent measure in the case of architects, merely prohibiting unregistered individuals from using the title and style of architect. It is not for this Court to delve into why the legislature made this choice. However, during the course of these proceedings a cogent and pragmatic reason for this choice has been placed before this Court, by the learned Attorney General of India and by way of the erudite opinion of Chief Justice Raveendran in the decision in Mukhesh Kumar Manhar to which we may briefly advert. 31. The profession of architecture involves a wide range of activities including inter alia: (i) Taking instructions from clients and preparing designs; (ii) Site evaluation and analysis; (iii) Site design and development; (iv) Structural design; (v) Design of sanitary, plumbing, sewage, drainage, and water supply structures; (vi) Design and structural integration of electrical and communications systems; (vii) Incorporation of heating, air-conditioning, ventilation and other mechanical systems including fire detection and prevention systems; and (viii) Periodic inspection and evaluation of construction work. These activities are undertaken by architects but are also carried out by architects in concert with a range of other actors including draughtspersons, builders, engineers, and designers. If the legislature were to impose an absolute prohibition against unregistered individuals from =practicing architecture there would be considerable confusion as to what activities formed the practice of architecture and what did not. It may have resulted in a host of other legitimate professionals being barred from engaging in the design, supervision and construction of buildings merely because they were not registered under the Architects Act. Further, as the learned Attorney General of India brought to our attention, these varied professions form essential cogs in the overall machinery of construction in India and the design, supervision and construction of new structures cannot be done by architects alone. It would be unreasonable from a regulatory perspective to ask all professions touching upon the construction of new structures to obtain a degree in architecture. 32. Architecture undoubtedly constitutes a highly specialised profession requiring the possession of minimum educational qualifications. However, architects are by and large engaged by means of a contract for services. In other words, architects provide a set of specialised services towards the larger goal of construction. Architects are not embarking on construction independently of other actors. By virtue of the Architects Act, anybody engaging the services of an individual calling themselves an A rchitect is assured that such an individual possesses statutorily recognised educational qualifications and is competent to complete the task at hand. It is in this manner that the legislature protects the common person from untrained individuals. | 1[ds]21. The order of this Court dated 14 February 2017 states that the High Court was in error in rejecting the contention of the appellant that practice under the Architects Act, 1972 is not restricted only to the architects.The appellant was the Council of Architecture. The order is based on the premise that the contention of the Council of Architecture before the High Court of Bombay was that the practice under the Architects Act, 1972 is not restricted only to architects.The order stated that the High Court was wrong in rejecting this contention. Therefore, the order of this Court dated 14 February 2017 clearly sought to lay down the proposition that the practice under the Architects Act, 1972 is not restricted only to architects.Having laid down this proposition, it would appear that the use of the word not in the next line is inadvertent . In the previous sentence the court expounded the position that the practice of architecture cannot be restricted to registered architects under the Architects Act. Hence, it would be an incorrect interpretation of the order to hold that in the very next line, the court would have laid down a contrary proposition. Therefore, the effect of the order as a whole is to lay down the principle that individuals can practice as architects even if they are not registered under the Architects Act. The subsequent order of this Court dated 11 September 2017 which quotes and follows the earlier order should also be read in this light. Therefore, the two orders of this Court do not further the case urged by the appellant but support the position set out by the Union of India, succinctly advanced in the submissions of the learned Attorney GeneralTherefore, a plain reading of Section 37 clearly supports the proposition that the Architects Act prohibits individuals not registered with the Council of Architecture from using the title and style of Architect and does not prohibit unregistered individuals from practicing the activities undertaken by architects such as the design, supervision and construction of buildingsThese submissions are ultimately premised on the argument that even if a plain reading of Section 37 does not support the argument of a prohibition on practice this Court must nonetheless read the provision to include a prohibition on practice in order to avoid defeating the object and purpose of the Architects Act28. It is well settled that the first and best method of determining the intention of the legislature is the very words chosen by the legislature to have the force of law. In other words, the intention of the legislature is best evidenced by the text of the statute itself. However, where a plain reading of the text of the statute leads to an absurd or unreasonable meaning, the text of the statute must be construed in light of the object and purpose with which the legislature enacted the statute as a whole. Where it is contended that a particular interpretation would lead to defeating the very object of a legislation, such an interpretative outcome would clearly be absurd or unreasonableThe Statement of Objects and Reasons of the Architects Act makes it evident that the legislature was undoubtedly concerned with the risk of unqualified persons undertaking the construction of buildings leading to costly and dangerous buildings. In guarding against this risk, the legislature first set out a minimum standard of statutorily recognised qualifications to be met before an individual is designated as an architect under the Architects Act. This is done by Sections 14, 15 and 17 of the Act. Next, the legislature created two classes of individuals: the first class consisted of registered architects satisfying these minimum qualifications and a second class of unregistered individuals who did not satisfy these minimum qualifications. This is the effect of Sections 2(a), 17, 23 and 35 of the Architects Act. Crucially, the legislature chose to define an architect as an individual registered under the Architects Act and not as an individual practicing architecture or any cognate activities. Thus, the legislature limited the regulatory regime created by the Architects Act to the first class of individuals. In protecting the public from the risk of the second class, untrained individuals, the legislature had two options: first it could bar this second class of individuals from engaging in the profession altogether (as it had done with physicians and advocates); or alternatively it could prevent this second class of individuals from calling themselves Architects. The Statement of Objects and Reasons makes it clear that the legislature chose the second option and in fact went to great lengths to clarify that choice. The legislature stated that with the passing of the legislation, it shall be unlawful for an unregistered individual to designate himself as an architect. Further, it is expressly stated that the legislation protects the title of architect but does not grant registered architects an exclusive right to undertake the design, supervision and construction of buildings. Other cognate professions or unregistered individuals may continue to carry out these activities provided that they do not refer to themselves as A rchitects30. It is evident that the legislature did not intend to create a prohibition on the practice of architecture and associated activities by unregistered individuals. As opposed to the case of physicians or surgeons under the Indian Medical Council Act or advocates under the Advocates Act, the legislature consciously chose to employ a less stringent measure in the case of architects, merely prohibiting unregistered individuals from using the title and style of architect. It is not for this Court to delve into why the legislature made this choice. However, during the course of these proceedings a cogent and pragmatic reason for this choice has been placed before this Court, by the learned Attorney General of India and by way of the erudite opinion of Chief Justice Raveendran in the decision in Mukhesh Kumar Manhar to which we may briefly advertIf the legislature were to impose an absolute prohibition against unregistered individuals from =practicing architecture there would be considerable confusion as to what activities formed the practice of architecture and what did not. It may have resulted in a host of other legitimate professionals being barred from engaging in the design, supervision and construction of buildings merely because they were not registered under the Architects Act. Further, as the learned Attorney General of India brought to our attention, these varied professions form essential cogs in the overall machinery of construction in India and the design, supervision and construction of new structures cannot be done by architects alone. It would be unreasonable from a regulatory perspective to ask all professions touching upon the construction of new structures to obtain a degree in architecture32. Architecture undoubtedly constitutes a highly specialised profession requiring the possession of minimum educational qualifications. However, architects are by and large engaged by means of a contract for services. In other words, architects provide a set of specialised services towards the larger goal of construction. Architects are not embarking on construction independently of other actors. By virtue of the Architects Act, anybody engaging the services of an individual calling themselves an A rchitect is assured that such an individual possesses statutorily recognised educational qualifications and is competent to complete the task at hand. It is in this manner that the legislature protects the common person from untrained individuals33. For the above reasons, we affirm the decision of the High Court of Allahabad on the first question and hold that Section 37 of the Architects Act does not prohibit individuals not registered under the Architects Act from undertaking the practice of architecture and its cognate activities35. While we have held that Section 37 does not prohibit the practice of architecture by unregistered individuals, it certainly does prohibit unregistered individuals from using the title and style of architect. Under the scheme of the Architects Act, only individuals possessing the statutorily recognised minimum educational qualifications can apply for registration as an Architect under the Act. Registration as an architect under the statute is thus a guarantee of possessing certain minimum educational qualifications. Section 37 prohibits unregistered individuals from designating themselves or referring to themselves as architects. The consequence of this regulatory regime is that when an individual is called an Architect a reasonable person would assume that they are a registered architect under the Architects Act and as a consequence possess the requisite educational qualifications and specialised knowledge associated with architects36. If an individual is appointed to a post titled Associate Architect, Architect or Senior Architect, they undoubtedly refer to themselves and are referred to by others as Architects. Holding a post using the term Architect has the real-world consequence of being referred to as an architect. This is not a matter of mere nomenclature. As noted above, architecture is a specialised field of study. Crucially, the scheme of the Architects Act provides a direct nexus between the minimum educational qualifications required to be obtained, registration as an architect under the Act and the prohibition against the use of the title of A rchitect by those not registered under the Act. If a government post is titled Architect or Associate Architect, such a person certainly use s the title and style of architect and consequently there is a reasonable assumption that such a person is registered under the Architects Act and holds a degree in architecture recognised by the Act. This assumption finds statutory backing in Section 35 of the Architects Act which provides that any reference to an architect in any other law shall be deemed to mean an architect registered under the Architects Act. To promote an individual who does not possess a degree in architecture recognised by the Act to a post titled Architect, Associate Architect or of a similar style using the title or style of architect would effectively violate the prohibition on the use of title contained in Section 37 of the Architects Act37. In the present case, we recognise the power of NOIDA to provide and modify the minimum eligibility criteria for promotion of candidates to the posts of Associate Town Planner and Associate Architect. We further recognise that the authority has significant discretion in how it chooses to title the various posts under its supervision. However, to permit NOIDA to continue to title a post that includes individuals who are not registered architects under the Architects Act as Associat e Architect would result in a violation of Section 37 of the Architects Act. In the case of Tulya Gogoi the High Court of Gauhati expressly held that the prohibition on the use of title and style of architect contained in Section 37 of the Architects Act applies to both private individuals and government employees. The reasoning of the High Court on this issue commends itself for our acceptance. The text of Section 37 makes no distinction between government employees and private individualsThe distinction made by the Allahabad High Court, that the Promotion Policy 2005 was passed under a state legislation, namely the U.P. Industrial Area Development Act, and thus did not need to comport with the terms of the Architects Act as a central legislation is incorrect38. The U.P. Industrial Area Development Act provides NOIDA with the power to make rules for the management of its internal affairs. In exercise of this power, NOIDA formulated the Service Regulations of 1981. Rule 16 of the Service Regulations sets out thefor posts under NOIDAs authority. By clause (iv) of Rule 16 NOIDA has the power to modify the sources of recruitment for posts under its supervision. It is in exercise of this power that NOIDA formulated the Promotion Policy of 2005 which sets out the sources and qualifications for recruitment in its various departments. It is well established that delegated legislation is susceptible to invalidity on the grounds of being ultra vires its parent legislation but also ultra vires other primary legislation. Where the provisions of a primary legislation (the Architects Act) are contradictory to the provisions of a delegated legislation (the Promotion Policy 2005), the provisions of the primary legislation must prevail. This principle is well established and has received articulation by this Court on several occasions. In Indian Express Newspapers v Union of India (1985) 1 SCC 641 Justice Venkataramiah speaking for a three- judge Bench of this Court stated:75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent Legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition, it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. This is because subordinate legislation must yield to plenary legislation. It may also be question on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. …The distinction made by the Allahabad High Court, that the Promotion Policy 2005 was passed under a state legislation, namely the U.P. Industrial Area Development Act, and thus did not need to comport with the terms of the Architects Act as a central legislation is | 1 | 10,447 | 2,371 | ### 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:
a phenomenal scale. A large variety of buildings, many of extreme complexity and magnitude like multi-storeyed office buildings, factory buildings, residential houses, are being constructed each year. With this increase in the building activity, many unqualified persons calling themselves as Architects are undertaking the construction of buildings which are uneconomical and quite frequently are unsafe, thus bringing into disrepute the profession of architects. Various organisations, including the Indian Institute of Architects, have repeatedly emphasised the need for statutory regulation to protect the general public from unqualified persons working as architects. With the passing of this legislation, it will be unlawful for any person to designate himself as „architect unless he has the requisite qualifications and experience and is registered under the Act. … 3. The legislation protects the title architects but does not make the design, supervision and construction of buildings as an exclusive responsibility of architects. Other professions like engineers will be free to engage themselves in their normal vocation in respect of building construction work provided that they do not style themselves as architects. (Emphasis supplied) The Statement of Objects and Reasons of the Architects Act makes it evident that the legislature was undoubtedly concerned with the risk of unqualified persons undertaking the construction of buildings leading to costly and dangerous buildings. In guarding against this risk, the legislature first set out a minimum standard of statutorily recognised qualifications to be met before an individual is designated as an architect under the Architects Act. This is done by Sections 14, 15 and 17 of the Act. Next, the legislature created two classes of individuals: the first class consisted of registered architects satisfying these minimum qualifications and a second class of unregistered individuals who did not satisfy these minimum qualifications. This is the effect of Sections 2(a), 17, 23 and 35 of the Architects Act. Crucially, the legislature chose to define an architect as an individual registered under the Architects Act and not as an individual practicing architecture or any cognate activities. Thus, the legislature limited the regulatory regime created by the Architects Act to the first class of individuals. In protecting the public from the risk of the second class, untrained individuals, the legislature had two options: first it could bar this second class of individuals from engaging in the profession altogether (as it had done with physicians and advocates); or alternatively it could prevent this second class of individuals from calling themselves Architects. The Statement of Objects and Reasons makes it clear that the legislature chose the second option and in fact went to great lengths to clarify that choice. The legislature stated that with the passing of the legislation, it shall be unlawful for an unregistered individual to designate himself as an architect. Further, it is expressly stated that the legislation protects the title of architect but does not grant registered architects an exclusive right to undertake the design, supervision and construction of buildings. Other cognate professions or unregistered individuals may continue to carry out these activities provided that they do not refer to themselves as A rchitects. 30. It is evident that the legislature did not intend to create a prohibition on the practice of architecture and associated activities by unregistered individuals. As opposed to the case of physicians or surgeons under the Indian Medical Council Act or advocates under the Advocates Act, the legislature consciously chose to employ a less stringent measure in the case of architects, merely prohibiting unregistered individuals from using the title and style of architect. It is not for this Court to delve into why the legislature made this choice. However, during the course of these proceedings a cogent and pragmatic reason for this choice has been placed before this Court, by the learned Attorney General of India and by way of the erudite opinion of Chief Justice Raveendran in the decision in Mukhesh Kumar Manhar to which we may briefly advert. 31. The profession of architecture involves a wide range of activities including inter alia: (i) Taking instructions from clients and preparing designs; (ii) Site evaluation and analysis; (iii) Site design and development; (iv) Structural design; (v) Design of sanitary, plumbing, sewage, drainage, and water supply structures; (vi) Design and structural integration of electrical and communications systems; (vii) Incorporation of heating, air-conditioning, ventilation and other mechanical systems including fire detection and prevention systems; and (viii) Periodic inspection and evaluation of construction work. These activities are undertaken by architects but are also carried out by architects in concert with a range of other actors including draughtspersons, builders, engineers, and designers. If the legislature were to impose an absolute prohibition against unregistered individuals from =practicing architecture there would be considerable confusion as to what activities formed the practice of architecture and what did not. It may have resulted in a host of other legitimate professionals being barred from engaging in the design, supervision and construction of buildings merely because they were not registered under the Architects Act. Further, as the learned Attorney General of India brought to our attention, these varied professions form essential cogs in the overall machinery of construction in India and the design, supervision and construction of new structures cannot be done by architects alone. It would be unreasonable from a regulatory perspective to ask all professions touching upon the construction of new structures to obtain a degree in architecture. 32. Architecture undoubtedly constitutes a highly specialised profession requiring the possession of minimum educational qualifications. However, architects are by and large engaged by means of a contract for services. In other words, architects provide a set of specialised services towards the larger goal of construction. Architects are not embarking on construction independently of other actors. By virtue of the Architects Act, anybody engaging the services of an individual calling themselves an A rchitect is assured that such an individual possesses statutorily recognised educational qualifications and is competent to complete the task at hand. It is in this manner that the legislature protects the common person from untrained individuals.
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protects the common person from untrained individuals33. For the above reasons, we affirm the decision of the High Court of Allahabad on the first question and hold that Section 37 of the Architects Act does not prohibit individuals not registered under the Architects Act from undertaking the practice of architecture and its cognate activities35. While we have held that Section 37 does not prohibit the practice of architecture by unregistered individuals, it certainly does prohibit unregistered individuals from using the title and style of architect. Under the scheme of the Architects Act, only individuals possessing the statutorily recognised minimum educational qualifications can apply for registration as an Architect under the Act. Registration as an architect under the statute is thus a guarantee of possessing certain minimum educational qualifications. Section 37 prohibits unregistered individuals from designating themselves or referring to themselves as architects. The consequence of this regulatory regime is that when an individual is called an Architect a reasonable person would assume that they are a registered architect under the Architects Act and as a consequence possess the requisite educational qualifications and specialised knowledge associated with architects36. If an individual is appointed to a post titled Associate Architect, Architect or Senior Architect, they undoubtedly refer to themselves and are referred to by others as Architects. Holding a post using the term Architect has the real-world consequence of being referred to as an architect. This is not a matter of mere nomenclature. As noted above, architecture is a specialised field of study. Crucially, the scheme of the Architects Act provides a direct nexus between the minimum educational qualifications required to be obtained, registration as an architect under the Act and the prohibition against the use of the title of A rchitect by those not registered under the Act. If a government post is titled Architect or Associate Architect, such a person certainly use s the title and style of architect and consequently there is a reasonable assumption that such a person is registered under the Architects Act and holds a degree in architecture recognised by the Act. This assumption finds statutory backing in Section 35 of the Architects Act which provides that any reference to an architect in any other law shall be deemed to mean an architect registered under the Architects Act. To promote an individual who does not possess a degree in architecture recognised by the Act to a post titled Architect, Associate Architect or of a similar style using the title or style of architect would effectively violate the prohibition on the use of title contained in Section 37 of the Architects Act37. In the present case, we recognise the power of NOIDA to provide and modify the minimum eligibility criteria for promotion of candidates to the posts of Associate Town Planner and Associate Architect. We further recognise that the authority has significant discretion in how it chooses to title the various posts under its supervision. However, to permit NOIDA to continue to title a post that includes individuals who are not registered architects under the Architects Act as Associat e Architect would result in a violation of Section 37 of the Architects Act. In the case of Tulya Gogoi the High Court of Gauhati expressly held that the prohibition on the use of title and style of architect contained in Section 37 of the Architects Act applies to both private individuals and government employees. The reasoning of the High Court on this issue commends itself for our acceptance. The text of Section 37 makes no distinction between government employees and private individualsThe distinction made by the Allahabad High Court, that the Promotion Policy 2005 was passed under a state legislation, namely the U.P. Industrial Area Development Act, and thus did not need to comport with the terms of the Architects Act as a central legislation is incorrect38. The U.P. Industrial Area Development Act provides NOIDA with the power to make rules for the management of its internal affairs. In exercise of this power, NOIDA formulated the Service Regulations of 1981. Rule 16 of the Service Regulations sets out thefor posts under NOIDAs authority. By clause (iv) of Rule 16 NOIDA has the power to modify the sources of recruitment for posts under its supervision. It is in exercise of this power that NOIDA formulated the Promotion Policy of 2005 which sets out the sources and qualifications for recruitment in its various departments. It is well established that delegated legislation is susceptible to invalidity on the grounds of being ultra vires its parent legislation but also ultra vires other primary legislation. Where the provisions of a primary legislation (the Architects Act) are contradictory to the provisions of a delegated legislation (the Promotion Policy 2005), the provisions of the primary legislation must prevail. This principle is well established and has received articulation by this Court on several occasions. In Indian Express Newspapers v Union of India (1985) 1 SCC 641 Justice Venkataramiah speaking for a three- judge Bench of this Court stated:75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent Legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition, it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. This is because subordinate legislation must yield to plenary legislation. It may also be question on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. …The distinction made by the Allahabad High Court, that the Promotion Policy 2005 was passed under a state legislation, namely the U.P. Industrial Area Development Act, and thus did not need to comport with the terms of the Architects Act as a central legislation is
|
Oswal Woollen Mills Ltd. & Anr Vs. Union Of India & Ors | the licence may, therefore, be transferred in the name of the first petitioner and an endorsement may be made on it to make it valid for import of the items permitted under paragraph 138 with the Actual User and non-transferable conditions. This request was rejected by the third respondent by his letter dated 15-10-1981 on the grounds that the (REP) Licence in question was issued to the licensee against the export of his own products, i.e. for which the licensee was registered as a manufacturer-exporter as per the relevant registration-cum-membership certificate held by him. There is no dispute about these facts.14. The petitioners contention is that the first petitioner is entitled to import the raw materials, components, consumables and packing materials required by it for use in its own factories in terms of paragraph 138(1) of the Import Policy, 1981-82 as the transferee of the (REP) Licence permitted by paragraph 140 of the Import Policy, 1981-82 notwithstanding the fact that the first petitioner is not the manufacturer-exporter against whose exports the (REP) Licence in question was issued but a Trading House who got the said licence transferred by the letter dated 8-7-1981 as per paragraph 195(4)(ii) of the Import Policy, 1981-82. The respondents contention is that as the first petitioner is not the manufacturer-exporter to whom the (REP) Licence was issued against his export it is not entitled to Import the raw materials etc. mentioned in the first petitioners letter dated 23-9-1981 under paragraph 138(1) of the Import Policy, 1981-82. The question is which of these contentions is correct.15. Paragraph 140 clearly states that (REP) Licence will be issued in the name of the Registered Exporter only and will not be subject to Actual User condition and that except for cases covered by paragraphs 136(2), 185(2) and 186(1) the licence holder may transfer the licence in full or in part in favour of any other person and that the licence holder of such transferee may import the goods permitted therein but the facility of paragraphs 136, 137 and 146 shall not be available to any transferee unless the transferee is himself a Registered Exporter and can satisfy the Customs Authorities at the time of clearance of the goods of his bona fides. The goods sought to be imported by the first petitioner on the basis of the (REP) Licence in question do not fall under paragraphs 136(2), 137, 146, 185(2) and 186(1) mentioned in paragraph 140 of the Import Policy, 1981-82. Paragraph 195(4)(ii) grants to Trading Houses like the first petitioner the facilities under Import Policy, viz. the import replenishment (REP) Licences transferred to them by others. Thus the first petitioner is entitled under paragraphs 140 and 195(4)(ii) to the facility of the Import Policy as a transferee of the (REP) Licence issued in the name of the actual manufacturer-exporter against exports made by that manufacturer-exporter. The contention of the respondents that under paragraph 138(1) the facility to import raw materials etc. under the (REP) Licence is available only to the actual manufacturer-exporter against whose exports the (REP) Licence was issued amounts to reading into paragraph 138(1) the words "against the exports of products manufactured by them" after the words "manufacturer-exporters" and before the words "will be valid ....." That is what is sought to be done by the impugned Circular dated 31-8-1981. The present contention of the respondents is that the Circular dated 31-8-1981 only clarifies paragraph 138(1) of the Import Policy, 1981-82 and does not amend or modify that paragraph. That is not how the learned Judges of the High Court have understood the Circular in their judgment under appeal. The learned Judges have stated in their judgment that the Circular dated 31-8-1981 appears to change the Import Policy and that the contention of the petitioners before them that the condition mentioned in the impugned order dated 15-10-1981 is not found in paragraph 138 of the Import Policy, 1981-82 is not acceptable to them. The learned Judges were right in saying that the Circular appears to change the Import Policy but they have erred in saying that the condition mentioned in the impugned order dated 15-10-1981 is found in paragraph 138(1) of the Import Policy, 1981-82. We are unable to find any such condition in paragraph 138(1) of the Import Policy, 1981-82. It is significant to note that paragraph 138(1) was not mentioned in paragraph 140 of the Import Policy, 1981-82. It is also significant to note that in the Import Policy for the subsequent year 1982-83 the said words "against their exports of products manufactured by them" have been actually inserted in paragraph 138(1) after the words "REP Licences issued to manufacturer-exporter" and before the words "will be valid within the overall value for import of any items of raw materials, components, consumables, spares and packing materials required by them for use in their factories subject to Actual User condition". In view of the respondents contention that the Circular dated 31-8-1981 is only clarificatory of paragraph 138(1) of the Import Policy, 1981-82 and does not amend or modify that paragraph it is unnecessary for us to go into the question whether the Circular issued by the Joint Chief Controller of Imports and Export can validly amend the Import Policy, 1981-82. On a perusal of the relevant paragraphs of the Imports Policy, 1981-82 mentioned above we agree with Mr. Soli J. Sorabjee, Senior Advocate for the appellants that the condition mentioned in the third respondents impugned letter dated 15-10-1981 is not there in paragraph 138(1) of the Import Policy, 1981-82 and that the Circular dated 31-8-1981 is invalid and that the rejection of the petitioners request made in the letter dated 23-9-1981 by the third respondent in the letter dated 15-10-1981 is unwarranted, and the request should have been complied with. We are unable to agree with Mr. M. M. Abdul Khadir, Senior Advocate for the respondents that the condition mentioned in the letter dated 15-10-1981 is to be found in paragraph 138(1) of the Import Policy, 1981-82. | 1[ds]15. Paragraph 140 clearly states that (REP) Licence will be issued in the name of the Registered Exporter only and will not be subject to Actual User condition and that except for cases covered by paragraphs 136(2), 185(2) and 186(1) the licence holder may transfer the licence in full or in part in favour of any other person and that the licence holder of such transferee may import the goods permitted therein but the facility of paragraphs 136, 137 and 146 shall not be available to any transferee unless the transferee is himself a Registered Exporter and can satisfy the Customs Authorities at the time of clearance of the goods of his bona fides. The goods sought to be imported by the first petitioner on the basis of the (REP) Licence in question do not fall under paragraphs 136(2), 137, 146, 185(2) and 186(1) mentioned in paragraph 140 of the Import Policy, 1981-82. Paragraph 195(4)(ii) grants to Trading Houses like the first petitioner the facilities under Import Policy, viz. the import replenishment (REP) Licences transferred to them by others. Thus the first petitioner is entitled under paragraphs 140 and 195(4)(ii) to the facility of the Import Policy as a transferee of the (REP) Licence issued in the name of the actual manufacturer-exporter against exports made by that manufacturer-exporter. The contention of the respondents that under paragraph 138(1) the facility to import raw materials etc. under the (REP) Licence is available only to the actual manufacturer-exporter against whose exports the (REP) Licence was issued amounts to reading into paragraph 138(1) the words "against the exports of products manufactured by them" after the words "manufacturer-exporters" and before the words "will be valid ....." That is what is sought to be done by the impugned Circular dated 31-8-1981. The present contention of the respondents is that the Circular dated 31-8-1981 only clarifies paragraph 138(1) of the Import Policy, 1981-82 and does not amend or modify that paragraph. That is not how the learned Judges of the High Court have understood the Circular in their judgment under appeal. The learned Judges have stated in their judgment that the Circular dated 31-8-1981 appears to change the Import Policy and that the contention of the petitioners before them that the condition mentioned in the impugned order dated 15-10-1981 is not found in paragraph 138 of the Import Policy, 1981-82 is not acceptable to them. The learned Judges were right in saying that the Circular appears to change the Import Policy but they have erred in saying that the condition mentioned in the impugned order dated 15-10-1981 is found in paragraph 138(1) of the Import Policy, 1981-82. We are unable to find any such condition in paragraph 138(1) of the Import Policy, 1981-82. It is significant to note that paragraph 138(1) was not mentioned in paragraph 140 of the Import Policy, 1981-82. It is also significant to note that in the Import Policy for the subsequent year 1982-83 the said words "against their exports of products manufactured by them" have been actually inserted in paragraph 138(1) after the words "REP Licences issued to manufacturer-exporter" and before the words "will be valid within the overall value for import of any items of raw materials, components, consumables, spares and packing materials required by them for use in their factories subject to Actual User condition". In view of the respondents contention that the Circular dated 31-8-1981 is only clarificatory of paragraph 138(1) of the Import Policy, 1981-82 and does not amend or modify that paragraph it is unnecessary for us to go into the question whether the Circular issued by the Joint Chief Controller of Imports and Export can validly amend the Import Policy, 1981-82. On a perusal of the relevant paragraphs of the Imports Policy, 1981-82 mentioned above we agree with Mr. Soli J. Sorabjee, Senior Advocate for the appellants that the condition mentioned in the third respondents impugned letter dated 15-10-1981 is not there in paragraph 138(1) of the Import Policy, 1981-82 and that the Circular dated 31-8-1981 is invalid and that the rejection of the petitioners request made in the letter dated 23-9-1981 by the third respondent in the letter dated 15-10-1981 is unwarranted, and the request should have been complied with. We are unable to agree with Mr. M. M. Abdul Khadir, Senior Advocate for the respondents that the condition mentioned in the letter dated 15-10-1981 is to be found in paragraph 138(1) of the Import Policy, 1981-82. | 1 | 3,624 | 871 | ### Instruction:
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### Input:
the licence may, therefore, be transferred in the name of the first petitioner and an endorsement may be made on it to make it valid for import of the items permitted under paragraph 138 with the Actual User and non-transferable conditions. This request was rejected by the third respondent by his letter dated 15-10-1981 on the grounds that the (REP) Licence in question was issued to the licensee against the export of his own products, i.e. for which the licensee was registered as a manufacturer-exporter as per the relevant registration-cum-membership certificate held by him. There is no dispute about these facts.14. The petitioners contention is that the first petitioner is entitled to import the raw materials, components, consumables and packing materials required by it for use in its own factories in terms of paragraph 138(1) of the Import Policy, 1981-82 as the transferee of the (REP) Licence permitted by paragraph 140 of the Import Policy, 1981-82 notwithstanding the fact that the first petitioner is not the manufacturer-exporter against whose exports the (REP) Licence in question was issued but a Trading House who got the said licence transferred by the letter dated 8-7-1981 as per paragraph 195(4)(ii) of the Import Policy, 1981-82. The respondents contention is that as the first petitioner is not the manufacturer-exporter to whom the (REP) Licence was issued against his export it is not entitled to Import the raw materials etc. mentioned in the first petitioners letter dated 23-9-1981 under paragraph 138(1) of the Import Policy, 1981-82. The question is which of these contentions is correct.15. Paragraph 140 clearly states that (REP) Licence will be issued in the name of the Registered Exporter only and will not be subject to Actual User condition and that except for cases covered by paragraphs 136(2), 185(2) and 186(1) the licence holder may transfer the licence in full or in part in favour of any other person and that the licence holder of such transferee may import the goods permitted therein but the facility of paragraphs 136, 137 and 146 shall not be available to any transferee unless the transferee is himself a Registered Exporter and can satisfy the Customs Authorities at the time of clearance of the goods of his bona fides. The goods sought to be imported by the first petitioner on the basis of the (REP) Licence in question do not fall under paragraphs 136(2), 137, 146, 185(2) and 186(1) mentioned in paragraph 140 of the Import Policy, 1981-82. Paragraph 195(4)(ii) grants to Trading Houses like the first petitioner the facilities under Import Policy, viz. the import replenishment (REP) Licences transferred to them by others. Thus the first petitioner is entitled under paragraphs 140 and 195(4)(ii) to the facility of the Import Policy as a transferee of the (REP) Licence issued in the name of the actual manufacturer-exporter against exports made by that manufacturer-exporter. The contention of the respondents that under paragraph 138(1) the facility to import raw materials etc. under the (REP) Licence is available only to the actual manufacturer-exporter against whose exports the (REP) Licence was issued amounts to reading into paragraph 138(1) the words "against the exports of products manufactured by them" after the words "manufacturer-exporters" and before the words "will be valid ....." That is what is sought to be done by the impugned Circular dated 31-8-1981. The present contention of the respondents is that the Circular dated 31-8-1981 only clarifies paragraph 138(1) of the Import Policy, 1981-82 and does not amend or modify that paragraph. That is not how the learned Judges of the High Court have understood the Circular in their judgment under appeal. The learned Judges have stated in their judgment that the Circular dated 31-8-1981 appears to change the Import Policy and that the contention of the petitioners before them that the condition mentioned in the impugned order dated 15-10-1981 is not found in paragraph 138 of the Import Policy, 1981-82 is not acceptable to them. The learned Judges were right in saying that the Circular appears to change the Import Policy but they have erred in saying that the condition mentioned in the impugned order dated 15-10-1981 is found in paragraph 138(1) of the Import Policy, 1981-82. We are unable to find any such condition in paragraph 138(1) of the Import Policy, 1981-82. It is significant to note that paragraph 138(1) was not mentioned in paragraph 140 of the Import Policy, 1981-82. It is also significant to note that in the Import Policy for the subsequent year 1982-83 the said words "against their exports of products manufactured by them" have been actually inserted in paragraph 138(1) after the words "REP Licences issued to manufacturer-exporter" and before the words "will be valid within the overall value for import of any items of raw materials, components, consumables, spares and packing materials required by them for use in their factories subject to Actual User condition". In view of the respondents contention that the Circular dated 31-8-1981 is only clarificatory of paragraph 138(1) of the Import Policy, 1981-82 and does not amend or modify that paragraph it is unnecessary for us to go into the question whether the Circular issued by the Joint Chief Controller of Imports and Export can validly amend the Import Policy, 1981-82. On a perusal of the relevant paragraphs of the Imports Policy, 1981-82 mentioned above we agree with Mr. Soli J. Sorabjee, Senior Advocate for the appellants that the condition mentioned in the third respondents impugned letter dated 15-10-1981 is not there in paragraph 138(1) of the Import Policy, 1981-82 and that the Circular dated 31-8-1981 is invalid and that the rejection of the petitioners request made in the letter dated 23-9-1981 by the third respondent in the letter dated 15-10-1981 is unwarranted, and the request should have been complied with. We are unable to agree with Mr. M. M. Abdul Khadir, Senior Advocate for the respondents that the condition mentioned in the letter dated 15-10-1981 is to be found in paragraph 138(1) of the Import Policy, 1981-82.
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### Explanation:
15. Paragraph 140 clearly states that (REP) Licence will be issued in the name of the Registered Exporter only and will not be subject to Actual User condition and that except for cases covered by paragraphs 136(2), 185(2) and 186(1) the licence holder may transfer the licence in full or in part in favour of any other person and that the licence holder of such transferee may import the goods permitted therein but the facility of paragraphs 136, 137 and 146 shall not be available to any transferee unless the transferee is himself a Registered Exporter and can satisfy the Customs Authorities at the time of clearance of the goods of his bona fides. The goods sought to be imported by the first petitioner on the basis of the (REP) Licence in question do not fall under paragraphs 136(2), 137, 146, 185(2) and 186(1) mentioned in paragraph 140 of the Import Policy, 1981-82. Paragraph 195(4)(ii) grants to Trading Houses like the first petitioner the facilities under Import Policy, viz. the import replenishment (REP) Licences transferred to them by others. Thus the first petitioner is entitled under paragraphs 140 and 195(4)(ii) to the facility of the Import Policy as a transferee of the (REP) Licence issued in the name of the actual manufacturer-exporter against exports made by that manufacturer-exporter. The contention of the respondents that under paragraph 138(1) the facility to import raw materials etc. under the (REP) Licence is available only to the actual manufacturer-exporter against whose exports the (REP) Licence was issued amounts to reading into paragraph 138(1) the words "against the exports of products manufactured by them" after the words "manufacturer-exporters" and before the words "will be valid ....." That is what is sought to be done by the impugned Circular dated 31-8-1981. The present contention of the respondents is that the Circular dated 31-8-1981 only clarifies paragraph 138(1) of the Import Policy, 1981-82 and does not amend or modify that paragraph. That is not how the learned Judges of the High Court have understood the Circular in their judgment under appeal. The learned Judges have stated in their judgment that the Circular dated 31-8-1981 appears to change the Import Policy and that the contention of the petitioners before them that the condition mentioned in the impugned order dated 15-10-1981 is not found in paragraph 138 of the Import Policy, 1981-82 is not acceptable to them. The learned Judges were right in saying that the Circular appears to change the Import Policy but they have erred in saying that the condition mentioned in the impugned order dated 15-10-1981 is found in paragraph 138(1) of the Import Policy, 1981-82. We are unable to find any such condition in paragraph 138(1) of the Import Policy, 1981-82. It is significant to note that paragraph 138(1) was not mentioned in paragraph 140 of the Import Policy, 1981-82. It is also significant to note that in the Import Policy for the subsequent year 1982-83 the said words "against their exports of products manufactured by them" have been actually inserted in paragraph 138(1) after the words "REP Licences issued to manufacturer-exporter" and before the words "will be valid within the overall value for import of any items of raw materials, components, consumables, spares and packing materials required by them for use in their factories subject to Actual User condition". In view of the respondents contention that the Circular dated 31-8-1981 is only clarificatory of paragraph 138(1) of the Import Policy, 1981-82 and does not amend or modify that paragraph it is unnecessary for us to go into the question whether the Circular issued by the Joint Chief Controller of Imports and Export can validly amend the Import Policy, 1981-82. On a perusal of the relevant paragraphs of the Imports Policy, 1981-82 mentioned above we agree with Mr. Soli J. Sorabjee, Senior Advocate for the appellants that the condition mentioned in the third respondents impugned letter dated 15-10-1981 is not there in paragraph 138(1) of the Import Policy, 1981-82 and that the Circular dated 31-8-1981 is invalid and that the rejection of the petitioners request made in the letter dated 23-9-1981 by the third respondent in the letter dated 15-10-1981 is unwarranted, and the request should have been complied with. We are unable to agree with Mr. M. M. Abdul Khadir, Senior Advocate for the respondents that the condition mentioned in the letter dated 15-10-1981 is to be found in paragraph 138(1) of the Import Policy, 1981-82.
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Chhathu Ram And Ors. Etc. Etc Vs. Commissioner Of Income Tax, Bihar, Patna And Ors | the Income Tax Officer 6. The High Court dismissed the writ petitions on the following reasoning : by virtue of Section 297 of the 1961 Act, all the proceedings including the proceedings for rectification relating to the assessment year 1942-43 must be deemed to have been taken under the 1922 Act. Under the said Act the Tribunal had no power to condone the delay in filing an application under Section 66(1) as held in S. Sankappa v. ITO. The Tribunal is not a court and, therefore, the provisions of the Limitation Act, 1963 do not apply to the proceedings before the Tribunal. The dismissal of the applications under Section 66(1) was, therefore, proper. The provision contained in sub-section (3) of Section 66 does not also empower the High Court to condone the delay in filing the application under sub-section (1). So far as merits are concerned, the orders of settlement did not, in the facts and circumstances of this case, preclude the Income Tax Officer from passing the impugned order of rectification. The bar contained in Section 34(1-D) of the 1922 Act was conclusive only in respect of the matters to which the settlement extended. The amount, or the issue which is the subject-matter of the rectification proceedings, was never the subject-matter of settlement 7. We are of the opinion that the High Court was right in holding that the settlement order did not preclude the Income Tax Officer from passing the aforesaid order of rectification. Sub-section (1-D) of Section 34 declares that any settlement arrived under the said section "shall be conclusive as to the matters stated therein". It further declares that "no person, whose assessments have been so settled, shall be entitled to reopen in any proceeding for the recovery of any sum under this Act or in any subsequent assessment or reassessment proceeding relating to any tax chargeable under this Act or in any other proceeding whatsoever before any court or other authority any matter which forms part of such settlement". It may be remembered that the assessees had applied to the Central Board of Revenue for settlement under sub-section (1-B) after receiving the notices under sub-section (1-A) of Section 34. And it was on the basis of such application that the Central Board had made an order of settlement. Sub-sections (1-A) and (1-B) of Section 34 constitute parts of one scheme which would be evident from a reading of the two sub-sections. They read as follows "(1-A) If, in the case of any assessee, the Income Tax Officer has reason to believe - (i) that income, profits or gains chargeable to income tax have escaped assessment for any year in respect of which the relevant previous year falls wholly or partly within the period beginning on the 1st day of September, 1939, and ending on the 31st day of March, 1946; and (ii) that the income, profits and gains which have so escaped assessment for any such year or years amount, or are likely to amount, to one lakh of rupees or more; he may, notwithstanding that the period of eight years or, as the case may be, four years specified in sub-section (i) has expired in respect thereof, serve on the assessee, or, if the assessee is a company on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of Section 22, and may proceed to assess or reassess the income, profits or gains of the assessee for all or any of the years referred to in clause (i), and thereupon the provisions of this Act (excepting those contained in clauses (i) and (iii) of the proviso to sub-section (i) and in sub-sections (2) and (3) of this section) shall, so far as may be, apply accordinglyProvided that the Income Tax Officer shall not issue a notice under this sub-section unless he has recorded his reasons for doing so, and the Central Board of Revenue is satisfied on such reasons recorded that it is a fit case for the issue of such notice Provided further that no such notice shall be issued after the 31st day of March, 1956 (1-B) Where any assessee to whom a notice has been issued under clause (a) of sub-section (1) or under sub-section (1-A) for any of the years ending on the 31st day of March of the years 1941 of 1948, inclusive applies to the Central Board of Revenue at any time within six months from the receipt of such notice or before the assessment or reassessment is made, whichever is earlier, to have the matters relating to his assessment settled, the Central Board of Revenue may, after considering the terms of settlement proposed and subject to the previous approval of the Central Government, accept the terms of such settlement, and, if it does so, shall make an order in accordance with the terms of such settlement specifying among other things the sum of money payable by the assessee." 8. The deduction allowed in the original assessment proceedings on account of the Excess Profits Tax was not the subject-matter of either the notice issued under sub-section (1-A) of Section 34 or of the order of settlement made under sub-section (1-B). The appeals under the E.P.T. Act were allowed by the A.A.C. subsequent to the acceptance of settlement under Section 34(1-B). The question of withdrawing the deduction granted earlier on account of the Excess Profits Tax arose only after the Appellate Assistant Commissioner allowed the appeals preferred by the assessee under the E.P.T. Act, by virtue of which no Excess Profits Tax was payable by the assessees. We are unable to see how does the bar contained in sub-section (1-D) of Section 34 come into play in the above circumstances. Once the liability of the assessees under Excess Profits Tax Act was held to be nil, the deduction given earlier had to be withdrawn and it was accordingly withdrawn under Section 35(6) of the Act | 0[ds]7. We are of the opinion that the High Court was right in holding that the settlement order did not preclude the Income Tax Officer from passing the aforesaid order of rectification. Sub-section (1-D) of Section 34 declares that any settlement arrived under the said section "shall be conclusive as to the matters stated therein". It further declares that "no person, whose assessments have been so settled, shall be entitled to reopen in any proceeding for the recovery of any sum under this Act or in any subsequent assessment or reassessment proceeding relating to any tax chargeable under this Act or in any other proceeding whatsoever before any court or other authority any matter which forms part of such settlement". It may be remembered that the assessees had applied to the Central Board of Revenue for settlement under sub-section (1-B) after receiving the notices under sub-section (1-A) of Section 34. And it was on the basis of such application that the Central Board had made an order of settlement. Sub-sections (1-A) and (1-B) of Section 34 constitute parts of one scheme which would be evident from a reading of the two sub-sections. They read as follows"(1-A) If, in the case of any assessee, the Income Tax Officer has reason to believe -(i) that income, profits or gains chargeable to income tax have escaped assessment for any year in respect of which the relevant previous year falls wholly or partly within the period beginning on the 1st day of September, 1939, and ending on the 31st day of March, 1946; and(ii) that the income, profits and gains which have so escaped assessment for any such year or years amount, or are likely to amount, to one lakh of rupees or more;he may, notwithstanding that the period of eight years or, as the case may be, four years specified in sub-section (i) has expired in respect thereof, serve on the assessee, or, if the assessee is a company on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of Section 22, and may proceed to assess or reassess the income, profits or gains of the assessee for all or any of the years referred to in clause (i), and thereupon the provisions of this Act (excepting those contained in clauses (i) and (iii) of the proviso to sub-section (i) and in sub-sections (2) and (3) of this section) shall, so far as may be, apply accordinglyProvided that the Income Tax Officer shall not issue a notice under this sub-section unless he has recorded his reasons for doing so, and the Central Board of Revenue is satisfied on such reasons recorded that it is a fit case for the issue of such noticeProvided further that no such notice shall be issued after the 31st day of March, 1956(1-B) Where any assessee to whom a notice has been issued under clause (a) of sub-section (1) or under sub-section (1-A) for any of the years ending on the 31st day of March of the years 1941 of 1948, inclusive applies to the Central Board of Revenue at any time within six months from the receipt of such notice or before the assessment or reassessment is made, whichever is earlier, to have the matters relating to his assessment settled, the Central Board of Revenue may, after considering the terms of settlement proposed and subject to the previous approval of the Central Government, accept the terms of such settlement, and, if it does so, shall make an order in accordance with the terms of such settlement specifying among other things the sum of money payable by the assessee."8. The deduction allowed in the original assessment proceedings on account of the Excess Profits Tax was not the subject-matter of either the notice issued under sub-section (1-A) of Section 34 or of the order of settlement made under sub-section (1-B). The appeals under the E.P.T. Act were allowed by the A.A.C. subsequent to the acceptance of settlement under Section 34(1-B). The question of withdrawing the deduction granted earlier on account of the Excess Profits Tax arose only after the Appellate Assistant Commissioner allowed the appeals preferred by the assessee under the E.P.T. Act, by virtue of which no Excess Profits Tax was payable by the assessees. We are unable to see how does the bar contained in sub-section (1-D) of Section 34 come into play in the above circumstances. Once the liability of the assessees under Excess Profits Tax Act was held to be nil, the deduction given earlier had to be withdrawn and it was accordingly withdrawn under Section 35(6) of the Act | 0 | 2,205 | 902 | ### 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 Income Tax Officer 6. The High Court dismissed the writ petitions on the following reasoning : by virtue of Section 297 of the 1961 Act, all the proceedings including the proceedings for rectification relating to the assessment year 1942-43 must be deemed to have been taken under the 1922 Act. Under the said Act the Tribunal had no power to condone the delay in filing an application under Section 66(1) as held in S. Sankappa v. ITO. The Tribunal is not a court and, therefore, the provisions of the Limitation Act, 1963 do not apply to the proceedings before the Tribunal. The dismissal of the applications under Section 66(1) was, therefore, proper. The provision contained in sub-section (3) of Section 66 does not also empower the High Court to condone the delay in filing the application under sub-section (1). So far as merits are concerned, the orders of settlement did not, in the facts and circumstances of this case, preclude the Income Tax Officer from passing the impugned order of rectification. The bar contained in Section 34(1-D) of the 1922 Act was conclusive only in respect of the matters to which the settlement extended. The amount, or the issue which is the subject-matter of the rectification proceedings, was never the subject-matter of settlement 7. We are of the opinion that the High Court was right in holding that the settlement order did not preclude the Income Tax Officer from passing the aforesaid order of rectification. Sub-section (1-D) of Section 34 declares that any settlement arrived under the said section "shall be conclusive as to the matters stated therein". It further declares that "no person, whose assessments have been so settled, shall be entitled to reopen in any proceeding for the recovery of any sum under this Act or in any subsequent assessment or reassessment proceeding relating to any tax chargeable under this Act or in any other proceeding whatsoever before any court or other authority any matter which forms part of such settlement". It may be remembered that the assessees had applied to the Central Board of Revenue for settlement under sub-section (1-B) after receiving the notices under sub-section (1-A) of Section 34. And it was on the basis of such application that the Central Board had made an order of settlement. Sub-sections (1-A) and (1-B) of Section 34 constitute parts of one scheme which would be evident from a reading of the two sub-sections. They read as follows "(1-A) If, in the case of any assessee, the Income Tax Officer has reason to believe - (i) that income, profits or gains chargeable to income tax have escaped assessment for any year in respect of which the relevant previous year falls wholly or partly within the period beginning on the 1st day of September, 1939, and ending on the 31st day of March, 1946; and (ii) that the income, profits and gains which have so escaped assessment for any such year or years amount, or are likely to amount, to one lakh of rupees or more; he may, notwithstanding that the period of eight years or, as the case may be, four years specified in sub-section (i) has expired in respect thereof, serve on the assessee, or, if the assessee is a company on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of Section 22, and may proceed to assess or reassess the income, profits or gains of the assessee for all or any of the years referred to in clause (i), and thereupon the provisions of this Act (excepting those contained in clauses (i) and (iii) of the proviso to sub-section (i) and in sub-sections (2) and (3) of this section) shall, so far as may be, apply accordinglyProvided that the Income Tax Officer shall not issue a notice under this sub-section unless he has recorded his reasons for doing so, and the Central Board of Revenue is satisfied on such reasons recorded that it is a fit case for the issue of such notice Provided further that no such notice shall be issued after the 31st day of March, 1956 (1-B) Where any assessee to whom a notice has been issued under clause (a) of sub-section (1) or under sub-section (1-A) for any of the years ending on the 31st day of March of the years 1941 of 1948, inclusive applies to the Central Board of Revenue at any time within six months from the receipt of such notice or before the assessment or reassessment is made, whichever is earlier, to have the matters relating to his assessment settled, the Central Board of Revenue may, after considering the terms of settlement proposed and subject to the previous approval of the Central Government, accept the terms of such settlement, and, if it does so, shall make an order in accordance with the terms of such settlement specifying among other things the sum of money payable by the assessee." 8. The deduction allowed in the original assessment proceedings on account of the Excess Profits Tax was not the subject-matter of either the notice issued under sub-section (1-A) of Section 34 or of the order of settlement made under sub-section (1-B). The appeals under the E.P.T. Act were allowed by the A.A.C. subsequent to the acceptance of settlement under Section 34(1-B). The question of withdrawing the deduction granted earlier on account of the Excess Profits Tax arose only after the Appellate Assistant Commissioner allowed the appeals preferred by the assessee under the E.P.T. Act, by virtue of which no Excess Profits Tax was payable by the assessees. We are unable to see how does the bar contained in sub-section (1-D) of Section 34 come into play in the above circumstances. Once the liability of the assessees under Excess Profits Tax Act was held to be nil, the deduction given earlier had to be withdrawn and it was accordingly withdrawn under Section 35(6) of the Act
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### Explanation:
7. We are of the opinion that the High Court was right in holding that the settlement order did not preclude the Income Tax Officer from passing the aforesaid order of rectification. Sub-section (1-D) of Section 34 declares that any settlement arrived under the said section "shall be conclusive as to the matters stated therein". It further declares that "no person, whose assessments have been so settled, shall be entitled to reopen in any proceeding for the recovery of any sum under this Act or in any subsequent assessment or reassessment proceeding relating to any tax chargeable under this Act or in any other proceeding whatsoever before any court or other authority any matter which forms part of such settlement". It may be remembered that the assessees had applied to the Central Board of Revenue for settlement under sub-section (1-B) after receiving the notices under sub-section (1-A) of Section 34. And it was on the basis of such application that the Central Board had made an order of settlement. Sub-sections (1-A) and (1-B) of Section 34 constitute parts of one scheme which would be evident from a reading of the two sub-sections. They read as follows"(1-A) If, in the case of any assessee, the Income Tax Officer has reason to believe -(i) that income, profits or gains chargeable to income tax have escaped assessment for any year in respect of which the relevant previous year falls wholly or partly within the period beginning on the 1st day of September, 1939, and ending on the 31st day of March, 1946; and(ii) that the income, profits and gains which have so escaped assessment for any such year or years amount, or are likely to amount, to one lakh of rupees or more;he may, notwithstanding that the period of eight years or, as the case may be, four years specified in sub-section (i) has expired in respect thereof, serve on the assessee, or, if the assessee is a company on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of Section 22, and may proceed to assess or reassess the income, profits or gains of the assessee for all or any of the years referred to in clause (i), and thereupon the provisions of this Act (excepting those contained in clauses (i) and (iii) of the proviso to sub-section (i) and in sub-sections (2) and (3) of this section) shall, so far as may be, apply accordinglyProvided that the Income Tax Officer shall not issue a notice under this sub-section unless he has recorded his reasons for doing so, and the Central Board of Revenue is satisfied on such reasons recorded that it is a fit case for the issue of such noticeProvided further that no such notice shall be issued after the 31st day of March, 1956(1-B) Where any assessee to whom a notice has been issued under clause (a) of sub-section (1) or under sub-section (1-A) for any of the years ending on the 31st day of March of the years 1941 of 1948, inclusive applies to the Central Board of Revenue at any time within six months from the receipt of such notice or before the assessment or reassessment is made, whichever is earlier, to have the matters relating to his assessment settled, the Central Board of Revenue may, after considering the terms of settlement proposed and subject to the previous approval of the Central Government, accept the terms of such settlement, and, if it does so, shall make an order in accordance with the terms of such settlement specifying among other things the sum of money payable by the assessee."8. The deduction allowed in the original assessment proceedings on account of the Excess Profits Tax was not the subject-matter of either the notice issued under sub-section (1-A) of Section 34 or of the order of settlement made under sub-section (1-B). The appeals under the E.P.T. Act were allowed by the A.A.C. subsequent to the acceptance of settlement under Section 34(1-B). The question of withdrawing the deduction granted earlier on account of the Excess Profits Tax arose only after the Appellate Assistant Commissioner allowed the appeals preferred by the assessee under the E.P.T. Act, by virtue of which no Excess Profits Tax was payable by the assessees. We are unable to see how does the bar contained in sub-section (1-D) of Section 34 come into play in the above circumstances. Once the liability of the assessees under Excess Profits Tax Act was held to be nil, the deduction given earlier had to be withdrawn and it was accordingly withdrawn under Section 35(6) of the Act
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